Egyab Conchita Dayasen v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1174/2019

[2024] HKCFI 385

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1174 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 17 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 1 August 2009 as a visitor and was permitted to stay until 8 August 2009. She did not depart and had overstayed since 9 August 2009. On 13 December 2010, she was arrested by the police. On 25 December 2010, she raised her torture claim, which was rejected. On 2 July 2013, she lodged a non-refoulement claim. Her claim was made on the basis that, if refouled, she would be harmed or killed by her moneylenders and her husband.

5.In short, in mid-2006 to early 2007, the applicant borrowed money from three different moneylenders for her own moneylending business and knit garment business. However, both businesses failed and she went bankrupt. She was unable to settle the loans. In around 2009, people from the moneylending companies visited the applicant to chase for repayment. They stated that they would take over her house which was used as a collateral to the loans. Out of fear, the applicant went into hiding. Meanwhile, her husband found out about the loan in 2008. Blaming the applicant for the borrowings, her husband assaulted her. Out of fear, the applicant sought protection in Hong Kong. Details of her claim are set out at paragraph 9 of the Notice of Decision dated 17 September 2018 by the Director (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 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”);

b.  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

c.  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. In elaboration, the Director found that (i) the absence or low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [15]-[18]; (ii) state protection would be available to her [19]-[22]; and (iii) internal relocation was a viable option [23]-[24].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 13 February 2019, the Board conducted an oral hearing for her appeal, during which she was assisted by an interpreter in the Ilocano language [9].

9.The Board recapped the applicant’s claim and her personal background [26]-[47]. Having considered the evidence, the Board found that the applicant’s evidence about the loans was vague and inherently inconsistent [51]. In particular, the Board found that she was unable to tell when she incurred the debts; that it was implausible that she could use her parents’ house as security which she had no title over; that her evidence about how she used the loan money was inconsistent and unconvincing; that her inaction in chasing back the loan money she lend to the borrowers was unreasonable; that her new claim of working in the moneylender’s company as a debt collector undermined her credibility; that her evidence about the moneylenders’ conducts was implausible; and that when she first raised grounds for her non-removal she only mentioned the fear of harm from her husband [48]-[59].

10.In light of the above, the Board concluded that the applicant was not a witness of truth and rejected her claim. Her appeal was therefore dismissed.

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

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

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

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.

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, for the reasons given in paragraph 9 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.

17.The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

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 the 22^nd day of February 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