Quirante Jackielon De Guzman v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1400/2019

[2024] HKCFI 684

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1400 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 21 May 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 2 August 2023.

The applicant

3.The applicant is a national of the Philippines.  She had been working as a foreign domestic helper in Hong Kong since December 2016.  She last entered Hong Kong on 3 March 2018 similar to the previous occasion to be employed as a foreign domestic helper but her contract was prematurely terminated on 19 June 2018.  She did not depart and became an overstayer.  She surrendered to the Immigration Department on 19 July 2018.  She lodged a claim for non-refoulement protection by way of written representations on 12 October and 8 November 2018 on the basis that she would be harmed or killed by: (i) her ex-partner (Nelson) due to domestic violence; and (ii) the ex-mayor of her home village in San Fabian.

4.According to the applicant, she had been a victim of domestic violence from 2010 to 2011.  She claimed that Nelson had become an alcoholic and drug addict and began physically beating her.  However, she did not leave him because they have a daughter together and she believed the violence was only temporary.  Sadly, the physical abuse worsened and she sought employment overseas in order to avoid him.  She was able to obtain work as a domestic helper in Qatar.  Upon completion of her employment contract, she returned to the Philippines in June 2012 but in fear of the threat received from Nelson, she did not return home and stayed with her mother instead.  On December 2012, she left the Philippines again to work as a domestic helper in Saudi Arabia for around two years.  Whilst working there, her mother informed her that Nelson was working for the Mayor of their home village, who was involved in illegal activities and had connection with the governor of the region.  When she returned in December 2014, she approached Nelson to seek custody of their daughter.  Relying on his promise that he would not beat her, the applicant reconciled with him.  However, after one month of reconciliation, the applicant was beaten again and she sought help from the Mayor.  Instead of providing assistance, the Mayor was angry because she had spread news that Nelson was a drug user.  The Mayor believed that this information caused him to lose the election in May 2015 and he blamed his defeat on the applicant and Nelson.   The Mayor threatened to kill the applicant while pointing a gun at her and she immediately left Nelson’s home to seek refuge in her mother’s home.  In light of the torment from Nelson and the Mayor, she made arrangements to leave the Philippines to work in Hong Kong.  Since working in Hong Kong, she had received threats via telephone calls from Nelson and was informed by her mother that he would visit her home in the Philippines seeking ownership of a piece land that belonged to the applicant.  She ultimately blocked Nelson from contacting her.  Details of her claim are set out at [6] of the Notice of Decision dated 28 January 2019 by the Director (the “Director’s Decision”).

The Director’s Decision

5.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”).

6.By way of the Director’s Decision, the Director dismissed the applicant’s claim.  In elaboration, the Director found that: (i) the intensity of ill-treatments by Nelson, whether physically or mentally, was low based on the information provided by the applicant [12] – [14]; (ii) there was no evidence to suggest that the Mayor had any intention to materialize his death threats, which meant there was no real risk of being harmed by the Mayor if she is refouled to the Philippines [17]; (iii) state protection would be available [19] – [27]; and (iii) internal relocation was a viable option [28] – [33].

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board.  On 29 April 219, the Board conducted an oral hearing for her appeal, during which she elected to give evidence and answered questions from the Board.

8.The Board recapped the applicant’s personal background, and her claim at the hearing [5] – [23].  It first considered evidence relating to the threats from the Mayor, which were found to be illogical and inconsistent with data from country of origin information (“COI”) [27] – [32].  The Board found it defied common sense that she would seek help from the Mayor when she was fully aware Nelson was his henchmen [27].  According to COI, there was also no election held in 2015 in her home village as alleged by the applicant and the name of the Mayor provided by her did not participate in any elections since 2010 [30].  Therefore, the Board rejected she was at risk of harm from the Mayor.

9.In relation to threats from Nelson, the Board was willing to consider the applicant’s risk of harm on the assumption the threats were real notwithstanding she was not an honest witness [33] and [34].  However, the Board found she was not at substantial risk of physical or mental harm from Nelson [36].  Furthermore, she did not report any of the domestic violence incidents to the police when COI indicated there was reasonable state protection [37] and [38].  In conclusion, the Board held she was not entitled to non-refoulement protection upon considering the factual basis of her claim under the applicable grounds. 

10.Therefore, her appeal was dismissed and the Board confirmed the Director’s Decision.

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

11.The applicant has filed Form 86 om 23 May 2019 for leave to apply for judicial review of the Board’s Decision.

12.The applicant has raised grounds below in support of her application.  I shall only consider her complaints against the Board.

(1)   She considers the Board’s Decision is not reasonable in that it did not take into account the right to life issue.

(2)   The Board was unfair to have placed too much weight on the country of origin information (“COI”) without taking into account of her personal background or experience.

(3)   The adjudicator was unfair for not accepting her explanation and unreasonably required her to respond to questions that she was not in a position to do so.  The Board had also failed to take into account of the nexus of political parties and official corruption.

(4)   The Board’s Decision is irrational.

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 confirmed that she understood the Board’s Decision and she was free to state her case before the Board.  She further said that she wanted the Court to review the Board’s Decision.

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 applicant’s grounds in paragraph 12 do not assist her application as they are her personal opinions without evidence in support; in particular ground (3) is untrue as she admitted that she was at liberty to give evidence before the Board at the hearing before me.

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

CONCLUSION

18.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