Aloba Everlyn Jumaway v. Torture Claims Appeal Board /Non-refoulement Claims Petition Office

HCAL 1167/2019

[2024] HKCFI 266

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1167 of 2019

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.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 3 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with her application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.

The applicant

4.The applicant is a national of the Philippines.  She last entered Hong Kong on 7 September 2014 as a foreign domestic helper and was permitted to stay until 26 April 2016 or two weeks after the termination of the contract, whichever was earlier.  On 30 July 2015, her employment contract was prematurely terminated.  Her application for extension of stay was granted and she was allowed to stay as a visitor until 9 September 2015.  However, she did not depart and had overstayed since 10 September 2015.  On 24 February 2018, she was arrested by the police for overstaying.  On 25 February 2018, 13, 14 and 20 March 2018, she lodged a non-refoulement claim.  Her claim was made on the basis that, if refouled, she would be harmed or killed by her father and husband.   

5.According to the applicant, her father’s friend raped her when she was still in primary school.  When she was 14 years old, her father raped her and her sister.  Assisted by her grandmother, the applicant reported her father to the police.  He was arrested and brought to the court.  However, under her mother’s persuasion, the applicant withdrew the case.  After her father returned home, the situation got worse.  He continued to rape the applicant who subsequently got pregnant.  When she was carrying the first child, she co-habited with her ex-boyfriend Marlon.  She gave birth to her second child with Marlon. 

6.In 2006, the applicant married her husband Ryan.  He was an alcoholic and would physically abuse the applicant when he was drunk.  The most serious assault from Ryan occurred in 2009, in which he hit the applicant’s thighs and arms.  Out of fear, the applicant eventually decided to seek protection in Hong Kong.  Details of her claim are set out at paragraph 6 of the Notice of Decision dated 13 August 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

7.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”).

8.By way of the Director’s Decision, the Director dismissed the applicant’s claim.  In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [13]-[15]; (ii) state protection would be available to her [16]-[18]; and (iii) internal relocation was a viable option [19]-[20].

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board.  On 10 January 2019, the Board conducted an oral hearing for her appeal, during which she testified with the assistance of an interpreter [34].

10.The Board recapped the applicant’s claim, her personal background and the oral evidence at the hearing [38]-[101].  Having considered the evidence, the Board found that the applicant’s claim was not credible.  In particular, the Board found that the applicant’s evidence about the rape from her father’s friend was inconsistent and implausible [107]; that she did not mention the sexual abuse from her own father in the written statements and her evidence on her pregnancy with her father and the events about her father’s criminal charge were not implausible [108]; that her evidence about the rape of her father was inconsistent and implausible in the context of the country of origin information (“COI”) [108]; and that her evidence on her abusive husband contained significant inconsistencies [109]. 

11.In light of these gaps, omissions and inconsistencies, the Board rejected the applicant’s accounts of event and concluded that her claim was not credible.  On the basis of lack of credibility, the Board rejected her claim and dismissed her appeal.

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

12.The applicant has filed Form 86 dated 2 May 2019 for leave to apply for judicial review of the Board’s Decision.

13.In her affirmation in support of her application, the applicant did not raise any specific ground.

DISCUSSION

14.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).

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

16.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.”

17.The Board, for the reasons given above, had rejected the applicant’s evidence on the facts of her case. She does not have any valid reasons to challenge the Board’s Decision. The applicant therefore has not factual basis in support of her claim.

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

Dated 19^th day of January 2024

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