Dulano Michelle Gallenero v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1492/2023

[2023] HKCFI 3057

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1492 of 2023

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 26 July 2023 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.The applicant did not ask for a hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court, her application is therefore dealt with on paper.

The applicant

3.The applicant is a national of the Philippines.  She came to Hong Kong and worked as a domestic helper in 2019.  Her employment contract was prematurely terminated and she was required to depart Hong Kong on or before 5 September 2022.  She overstayed and was arrested by police for overstaying and also for trafficking in dangerous drugs.  She was sentenced to 2 months’ imprisonment.  She lodged non-refoulement claim on 15 March 2023 on the ground that, if refouled, she will be harmed or killed by her ex-partner because of domestic dispute.

4.In short, the applicant claimed that in 2011, she lived with her boyfriend and she was pregnant.  She was supported by her boyfriend and his family.  Since 2013, her boyfriend became an alcoholic and he was violent.  He forced her to have sex with him even though she was tired and reluctant to do so.  He assaulted her from time to time, causing bruises over her body.  She did not leave him because of her baby.  In around August 2019, she left her country and worked in Hong Kong.  Whilst in Hong Kong, she was harassed by her boyfriend on phone for leaving him.  He threatened to kill her if she returned to the Philippines.  He had also gone to her family’s house and threatened her mother that he would kill her if she returned to the Philippines.  Details of the story are set out in paragraph 6 of the Director’s Notice of Decision dated 15 May 2023 (the “Director’s Decision”).

The Director’s Decision

5.The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

6.By way of the Director’s Decision, the Director dismissed the applicant’s claim.  In elaboration, the Director found that her boyfriend did not have intention of harming or killing her [13]; that even if he intended to harm her, he did not have the capability of locating her if she relocated herself [18]; that state protection was available to her [19]-[27]; and that internal relocation would be an viable option to her [28].

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board.  On 12 July 2023, the Board conducted an oral hearing for her appeal, during which she gave evidence with the assistance of an interpreter [28].  

8.Having had a rather detailed analysis of the applicant’s evidence, the Board came to the following conclusions:

“42. …And I accept the Appellant has a genuine subject fear Mr. K will kill or otherwise seriously harm her if she is refouled to the Philippines. However, on the balance of the objective evidence before me, I consider there to be only a remote or speculative risk, and therefore not a real risk, the Appellant will face Proscribed Harm under any Applicable Ground from Mr. K is she is refouled to the Philippines.

43. I have considered the claims of the Appellant individually and cumulatively, as well considering the personal circumstances of the Appellant faces a real risk of Proscribed Harm from Mr. K if the Appellant is refouled to the Risk State.”

9.The Board further found that the applicant would be safe if she relocates to live in Manila [44].  The Board considered that for those reasons, it will not be necessary for it to consider state protection [45].

10.For the above reasons, the Board dismissed the applicant’s appeal and confirmed the Director’s Decision.

Application for leave to apply for judicial review of the Board’s Decision

11.On 23 August 2023, the applicant filed Form 86 for leave to apply for judicial review of the Board’s Decision.

12.The applicant has filed an affidavit, in which she enclosed the Board’s Decision, but did not set out any specific ground in support of her application.

DISCUSSION

13.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal.  The Court will not usurp the fact finding power vested in the Director and the Board.  See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

15.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

16.The Board had, for the reasons given above, rejected the applicant’s claim for the reason that she failed to establish that she will be subjected to any real risk of harm if she returns to the Philippines.

17.There is no valid ground from the applicant to challenge the Board’s Decision.  

18.The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.

CONCLUSION

19.I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss her application.

Dated the 12^th day of December 2023

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1