Fontanilla Virginia Gao an v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 806/2019

[2024] HKCFI 173

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 806 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 18 March 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”), I shall deal with her application on paper.

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

The applicant

4.The applicant, aged 46, is a Filipino. She last entered Hong Kong to work as a foreign domestic helper on 30 July 2012. When her employment contract was prematurely terminated on 5 August 2012, she did not depart and had overstayed since 20 August 2012. The applicant surrendered to the Immigration Department on 13 October 2016 and she made a non-refoulement claim by written significations on 18 and 21 January 2017.

5.According to the applicant, she got married in 1996 and had three children. The applicant claimed she suffered continuous domestic violence from her husband since a couple of months after the marriage. She did not report the assault to police nor did she receive any medical treatment. Eventually, the applicant came to Hong Kong to work as a domestic helper. She thought it would be the end of her suffering. However, she later realized that her husband maltreated her children and spent all the money she sent back to his own satisfaction. Upon confrontation with her husband, the applicant was cursed badly and threatened with death. The applicant did not want to return to the Philippines because of the bad temper and violent behavior of her husband, which she experienced in the past.

6.The applicant was of the view that internal relocation within the Philippines not viable as her husband had a wide network of friends and relatives within the country, so that she could easily be found. She had never reported the matter to the police and had never heard of any government program to help women financially and to alleviate domestic violence.

7.Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 9 May 2018 (“the Director’s Decision”).

The Director’s Decision

8.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”).

9.By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director was of the view that (i) the low intensity of past ill-treatment from her husband is indicative of low future risk of harm upon her return to the Philippines [11]-[12]; (ii) state protection will be available to her upon her return [14]-[15]; (iii) internal relocation is viable [16] and (iv) the applicant’s case failed to meet any of the requirement under BOR 2 and BOR 3 risk [17]-[22], Persecution risk [23]-[27] or Torture risk [28]-[30].

The Board’s Decision

10.The applicant appealed the Director’s Decision to the Board. On 11 December 2018, the Board conducted an oral hearing.

11.Having considered the applicant’s evidence, the Board formed the view that the present case is a classic case of domestic violence that is quite prevalent all over the world. Given that there had been an elapse of 13 years since the applicant left the Philippines, there is no credible evidence that her husband is still enthusiastic to hurt her. In any event, the Board found that the applicant’s case failed to meet any of the requirement under Persecution risk [32]-[36], BOR 2 and BOR 3 risk [37]-[45] or Torture risk [46]-[51]. Furthermore, internal relocation and police protection were also available to the applicant [26].

12.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

13.The applicant has filed Form 86 dated 22 March 2019 for leave to apply for judicial review of the Board’s Decision.

14.The applicant filed her affidavit in support of her application without raising any specific ground.

DISCUSSION

15.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).

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

17.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.”

18.The applicant has raised no valid reason to challenge the Board’s Decision.

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

CONCLUSION

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

Dated the 25^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