Parane Marie Chris Baldusa v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1565/2023

[2023] HKCFI 3061

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1565 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 KW Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 28 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 on 24 March 2019.  Her last employment contract was terminated on 15 June 2022.  She applied for visitor visa but was refused.  She did not depart Hong Kong and overstayed since 10 April 2022.  On 9 August 2022, she was arrested by police for overstaying.  She was referred to the Immigration Department.  She lodged her claim for non-refoulement protection by a written signification on 7 March 2023.  She claimed that, if refouled, she would be harmed or killed by Johnathan, her boyfriend, with whom she had given birth to 4 children.

4.In short, the applicant claimed that since 2008, she had relationship with Johnathan, who had a family in Manila.  Johnathan is a violent man.  He beat her and kicked her after he was drunk or he had taken drug.  They separated in 2014.  However, between 2014 and 2022, she continued to have sexual relationship with him.  She had reported the matter to police.  But she did not want Johnathan to be jailed and she dropped her complaint afterwards. Since 2014, Johnathan did not beat her.  In 2022, one of their son, Joshua died of Septic Shock.  Johnathan blamed the applicant for negligence.  He threatened to kill her.  She came to Hong Kong to work in order to avoid him.  Details of the story are set out in paragraph 6 of the Director’s Notice of Decision dated 20 April 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 [12]-[14]; that even if he intended to harm her, state protection was available to her [15]-[21]; and that internal relocation would be an viable option to her [22]-[24].

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board.  On 13 July 2023, the Board conducted an oral hearing for her appeal, during which she gave evidence.  

8.Having considered the applicant’s evidence, the Board came to the following conclusions:

“ 37. The Appellant’s explanations given in reply to questions put to her at the Hearing contradict her earlier evidence and do not explain the inconsistencies, she was unable to explain why her partner did not kill her during the period 2009 to 2014 despite threatening her but now wants to kill her following the death of their son in 2022. …

38. The Appellant’s demeanour about her partner’s conduct towards her and their four boys and what she put up with to my mind, strongly undermines her credibility.

…

41. … On the credible evidence before me, I do not consider Appellant faces a real risk of Proscribed Harm from her partner if the Appellant is refouled to the Risk State….”

9.The Board further found that because of the above findings, it is unnecessary for it to consider state protection or internal relocation alternative [42].

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 4 September 2023, the applicant filed Form 86 for leave to apply for judicial review of the Board’s Decision.

12.The applicant has put down in her affidavit in support of her application that it is still dangerous for her to return to the Philippines.

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