Andaya Jasmin Marquez v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2049/2023

[2024] HKCFI 694

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2049 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 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 21 September 2023 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.

The applicant

3.The applicant, aged 45, is a Filipino. She last entered Hong Kong to work as a foreign domestic helper on 25 July 2002. When her employment contract was prematurely terminated on 5 August 2002, she applied for change of status as dependent to join her husband, who was a Hong Kong resident.  Her application was approved, but subsequently in 2005, due to her marriage problem, her dependent status could not be extended further and she was permitted to remain in Hong Kong as a visitor until 8 October 2005. She did not depart and had overstayed since 9 October 2005. The applicant was arrested by the Immigration Department on 2 January 2020 for breach of limit of stay. She was convicted and was sentenced to imprisonment for 12 months on 16 February 2021.  She then made a non-refoulement claim by written signification on 7 February 2023.

4.According to the applicant, in January 2019, she was in need of money as she could not find a job to support her living. So she asked her mother to borrow some money from whoever she knew in the Philippines. It turned out that her mother borrowed money from a loan shark, whom the applicant knew neither his name nor his background.

5.The applicant repaid monthly interest to the loan shark via her mother between January 2019 and November 2022. Yet, by December 2022, she was no longer able to do so because she used up the loan to pay the legal fees for her criminal charge and the subsequent appeal.  The applicant was then informed by her mother that the loan shark came and threatened to hurt or even kill the applicant if she failed to repay the loan. Since then she did not contact her mother.

6.The applicant did not want to return to the Philippines because of the threat her mother received from the loan shark. She had never reported the matter to the police because she thought the verbal threat given by the loan shark would be difficult to prove. She also thought the police would not assist as she had been away from the Philippines for nearly two decades. As to internal relocation within the Philippines, the applicant considered it not viable as she did not have the financial capabilities and did not know anybody elsewhere.

7.Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 26 April 2023 (“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 and frequency or even absence of past ill-treatment from the loan shark is indicative of low future risk of harm upon her return to the Philippines [14]-[15]; (ii) state protection will be available to her upon her return [18]-[24]; (iii) internal relocation is viable [17], [25]-[30] and (iv) the applicant’s case failed to meet any of the requirement under BOR 2 and BOR 3 risk [31]-[36], Persecution risk [37]-[41] and Torture risk [42]-[45].

The Board’s Decision

10.The applicant appealed the Director’s Decision to the Board.  On 7 September 2023, the Board conducted an oral hearing.   

11.Having considered the applicant’s evidence, the Board found that the applicant’s case failed to meet any of the requirement under Torture risk [27]-[36], [42], BOR 2 or BOR 3 risk [43]-[61] or Persecution risk [62]-[71]. Furthermore, state protection was also available to the applicant [37]-[41].

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 16 November 2023 for leave to apply for judicial review of the Board’s Decision.

14.In her affidavit in support of her application, she said she is unable to repay her debt and may be killed by the loan shark.

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.Having considered the applicant’s evidence, which, the Board found that if believed, there is no evidence to show that there is a real risk that she will be subjected to any of the applicable risks if she returns to the Philippines. The board is entitled to form its views. There is simply no reason that the Court should interfere with its decisions.

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 14^th day of March 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