Otingguey Aimee Burdeos v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1364/2019

[2024] HKCFI 852

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1364 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 12 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”), 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 is a national of the Philippines. She has worked as a foreign domestic helper in Hong Kong since June 2009 and she last arrived in Hong Kong on 4 September 2013 as a visitor but became an overstayer. After giving birth to her daughter on 5 August 2015, she was arrested by the police two days later on 7 August 2015. She submitted a non-refoulement claim on 8 October 2015 and 11 January 2018 for herself only on the basis that she would be harmed or killed by her family due to the birth of her illegitimate child.

5.In short, the applicant met the father of her daughter (Shahzad) in around August 2014 in Hong Kong and soon after their courtship, she became pregnant and gave birth to their daughter in August 2015. However, she discovered that Shahzad was already married but as she could not afford to rent another place, she and her daughter had to live with Shahzad together with his family. In around January 2017, she informed her father of situation and he became furious as she had brought disgrace to the family. Her father stated he would not accept the applicant and her illegitimate daughter if they returned to the Philippines. Her mother was also angry at her for bearing a child out of wedlock. Details of her claim are set out at [6] of the Notice of Decision dated 6 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 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. In elaboration, the Director found that: (i) there was simply no substantial grounds to believe that there would be a risk of harm from the applicant’s family as they never threatened to harm her and her daughter, and was only emotionally furious at her [11]; (ii) on her own admission, she could return to the Philippines and reunite with her family as she also admitted no one would harm her [11]; (iii) state protection was available [12]; and (iv) internal relocation alternatives were available in light of her work experience and her relatively young age [18].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 25 February 2019, the Board conducted an oral hearing for her appeal, during which she was assisted by an interpreter [40].

9.In essence, the Board found the applicant’s claim that her life was still in danger due to her family dispute was not substantiated. Its finding was based on multiple admissions from the applicant, such as: (i) she confirmed she was on good terms with her family at the hearing and they were willing to take care of her and her daughter [44]; (ii) her family was willing to accept her as her daughter was able to apply for a Hong Kong identity card, thus there was no issue to travel back to the Philippines for family reunion(s), which also meant her claim of family dispute was no longer extant [45]; and (iii) she understood there were assistance from the Philippines authorities, including help from them to gain employment [46] and [47]. As to the applicable grounds of non-refoulement protection, the evidence clearly indicated there was no adverse interest from the state against her [61] – [72] and there were no problematic issues for her in relation to internal relocation [58] and [59].

10.In the circumstances, 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

11.The applicant has filed Form 86 dated 21 May 2019 for leave to apply for judicial review of the Board’s Decision.

12.The applicant has filed her affidavit in support of her application. She annexed a copy of the Board’s Decision without raising any specific ground in support of her application.

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.For the reasons given in paragraph 9, the Board found that the applicant will not be subjected to any real risk of harm as she alleged if she returns to the Philippines.

17.The applicant has raised no valid ground to challenge the Board’s Decision. There is no reason that the Court should interfere with 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.

Dated the 3^rd day of April 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