Akinchang Benedicta Balingao v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1973/2019

[2024] HKCFI 286

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1973 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 present 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 5 July 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant requested an oral hearing.  Pursuant to Order 53, Rule 3(3) of the Rules of the High Court (“RHC”), she appeared before the Court on 29 November 2023.

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 40, came to work as a domestic helper on 5 June 2008.  During her employment, she was arrested and charged with the offences of using forged identity card and taking up unapproved employment.  Her employment was then prematurely terminated.  She was sentenced by the court for 15 months’ imprisonment.  She lodged a written application for non-refoulement claim on 2 November 2015.  A removal order was issued against her on 19 May 2016.  She is now being detained by the Immigration Department. She claimed that, if refouled, she will be harmed or killed by her creditor because she was unable to repay her debt.

5.Briefly stated.  The applicant borrowed money from the creditor to help her sister to open a bar in the Philippines.  Her sister’s business failed and she was unable to repay the debt or the interest to the creditor, who threatened to harm or even kill her.  She came to Hong Kong to work as a domestic helper.  She heard from her mother that the creditor had gone to her home to look for her.  He had also threatened to kill her if she cannot repay him.  Details of her story are in paragraph 6 of the Notice of Decision dated 30 January 2018 (“the Director’s Decision”).

The Director’s Decision

6.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”).

7.By way of the Director’s Decision, the Director dismissed the applicant’s claim for the reasons that firstly, from the absence of ill-treatment from her creditor in the past is indicative of a small future risk of harm upon her return to the Philippines [10]-[14]. Secondly, the availability of state protection lowers the level of risk [15]-[16].  Thirdly, internal relocation alternatives are available and reasonable for her [17]-[18].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 18 January 2019, the Board conducted an oral hearing for her with an interpreter.   

9.Having considered the applicant’s evidence [36], the Board came to the conclusion:

“ 88. In sum, I consider various factors, including the Appellant’s intelligence, her age, education, the effect of her purported harm or predicament, if any on her memory or understanding, her background and the nature and quality of all the answers mentioned above. I conclude that there are serious credibility problems such that I am unwilling to attach my credence regarding her evidence in these regards.

…

120. … She and her family members have not suffered any severe pain and suffering, at all.  There is no torture inflicted for purposes directly linked to the interests or policies of the Philippines or its organ. There are no torture inflicted by, or at the instigation, or with the consent or acquiescence of a public official or other person acting in an official capacity.  There is no real risk that she will experience torture, if she is returned to the Philippines.  Accordingly, the Appellant does not qualify for non-refoulement protection on the basis of Torture Risk.”

10.For the above reasons, the Board rejected the applicant’s claim and dismissed her appeal.

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

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

12.In support of her application, the applicant submitted that the Board had disregarded her dangerous situation.

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 Decisions should be examined with rigorous examination and anxious scrutiny.  Before me, the applicant said she did not receive the Board’s written decision.  After the Court had explained the Board’s Decision to her, she requested for more time to stay in Hong Kong.

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 found that the applicant failed to show that she will be subjected to any real risk as she alleged if she returns to the Philippines. From the evidence, the Board was entitled to form such views.

17.The applicant has raised no valid ground 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 to the applicant to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss her application.

POSTSCRIPT

20.I note that the Board has carefully considered the applicant’s case and made its findings and conclusion having examined the evidence with rigorous examination and anxious scrutiny.  The Board’s Decision runs up to 55 pages, with abundant references to the relevant legal authorities and COI.

21.For the relatively simply facts of the case as shown in paragraph 5 supra, the length of the Board’s Decision has run a disproportionate length. This is because the Board had adopted the approach of the UK authority, which was adopted in RM v Gerard Paul Muttre, Esq [2016] HKCFI 336 at [34] (see paragraph 73 of the Board’s Decision):

“ …the Adjudicator was also required to employ high standards of fairness and the most anxious scrutiny in his fact-finding exercise, and in so doing he should look at all the material evidence, including COI materials, and carry out a proper analysis. The Adjudicator should also provide adequate reasons in his decisions to enable one to understand (a) what evidence he accepted, (b) what evidence he rejected, (c) whether there was any evidence as to which he could not make up his mind whether or not he would accept, and (d) what, if any, evidence he regarded as irrelevant.”

22.This Court has in Emil Farag Girgis Meawd & Others v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Director of Immigration [2023] HKCFI 1692, 28 June 2023 held:

“ 53. The Court of Final Appeal in Oriental Daily Publisher Limited v Commissioner for Television and Entertainment Licensing Authority (1997-98) I HKCFAR 279, 25 November 1998, pages 16-17

‘ Where there is a duty to give reasons, it must be discharged by giving adequate reasons. What would amount to adequate reasons for a decision would depend on the context in which the decision maker is operating and the circumstances of the case in question…. … First, the reasons given should show that the Tribunal has addressed the substantial issues before it and show why the Tribunal has come to its decision. There may not be any need however to address every single issue. But the reasons should show that the issues that arise for serious consideration have been considered…. … Secondly, … … why the Tribunal has come to such conclusions…. … Thirdly, the reasons may not require great elaboration and they may be brief. It is only when they are defective in substance that they should be considered inadequate. Ultimately, what are adequate reasons in the circumstances of a particular case has to be approached sensibly. … … Fourthly, where a point of law is raised the point has to be decided… … Reasons for a decision on a point of law should usually set out the findings of fact, the point of law at issue and the process of reasoning leading to the conclusion.’

54. More aptly on this subject, the Court of Final Appeal in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, 8 June 2004, held:

‘ 51. In considering the potential deportee’s torture claim, the necessary high standards of fairness should be approached as follows: (1) The potential deportee, who has the burden of establishing that he would be in danger of being subjected to torture if deported to the country concerned, should be given every reasonable opportunity to establish his claim. (2) The claim must be properly assessed by the Secretary. … (3) Where the claim is rejected, reasons should be given by the Secretary. The reasons need not be elaborate but must be sufficient to enable the potential deportee to consider the possibilities of administrative review and judicial review.’

55. The RM judgment did not refer to the Court of Final Appeal cases preceding it and has not discussed why it should not follow the higher authorities’ rulings. The RM’s approach may be appropriate for the particular case before the learned judge. However, I consider that the decision should not be generalized as the standard formula for every case or cases of the same kind because of its lack of flexibility to cope with multifaceted and varying situations of the cases. Mechanical application of this approach will not be conducive to proper analysis of the cases or for the clear understanding of the issues in question. No doubt, the Court of Final Appeal’s decisions have the overriding authority.

56.  This Court will adopt the Court of Final Appeal’s decisions for this case.”

23.I am unable to see why this case should have adopted the RM’s approach, which is not costs effective and unnecessarily redundant in the finding of the facts of the case.  It is advisable for the Board to set out the reasons for not adopting the Court of Final Appeal’s approach and to adopt the RM’s approach in future.

Dated the 30^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