Peradilla Jessica Maranan v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1428/2019

[2024] HKCFI 908

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1428 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 24 May 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, aged 28, is a Filipino. She arrived in Hong Kong as a visitor on 11 January 2018. She overstayed since 26 January 2018 and surrendered herself to the Immigration Department on 21 March 2018. The applicant was subsequently released on recognizance on 29 March 2018 and she made a non-refoulement claim by written signification on 5 June 2018.

5.According to the applicant, her father deserted the family in 2003 and never returned home. In 2005, her mother met a man named Fidel Mendoza and began a relationship with him. In the same year, Fidel Mendoza moved in to live with them. In the early years during Fidel Mendoza’s residence, the applicant had limited interactions with him since she was living in a boarding school. In 2012, upon completion of the secondary school, the applicant stayed at home to help her mother with the household chores. In 2013, she discovered that Fidel Mendoza was a drug trafficker, who then threatened to kill her if she told anyone about the drug trafficking. In 2015, she encountered sexual harassment and attempted rape from Fidel Mendoza. The applicant reported the latter incident to the police. Although Fidel Mendoza was arrested, he was released within 2 hours.

6.The applicant fled to her maternal aunt’s house upon the release of Fidel Mendoza and resided there until June 2016. On 14 June 2016, for the sake of her safety, the applicant took a direct flight to Hong Kong, but was denied entry. So she went back to the Philippines and stayed with her paternal aunt in Manila. In December 2017, Fidel Mendoza found the applicant and forced her to go home with him. She was saved upon her aunt’s intervention. To avoid future encounter with Fidel Mendoza, the applicant took a flight to Hong Kong again on 11 January 2018. The applicant claimed that she maintained contact with her mother once a month over the phone since her arrival in Hong Kong. Her mother told her that she would let her know if “something ok or settle in the Philippines”. 

7.The applicant was of the view that she could not seek protection from the police as they were acquainted to Fidel Mendoza, given his quick release in relation to the attempted rape incident. She also considered relocating to other places within the Philippines not viable and that it would only be a matter of time for Fidel Mendoza to find her with the help of his gang, given that he managed to find her while she was residing in Manila.

8.Details of the applicant’s story can be found in paragraph 7 of the Director’s Decision dated 27 November 2018 (“the Director’s Decision”).

The Director’s Decision

9.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”).

10.By way of the Director’s Decision, the Director dismissed the applicant’s claim.  The Director found that the applicant’s risk of harm by Fidel Mendoza upon her return to the Philippines was low given Fidel Mendoza’s low intensity of past ill-treatment against the applicant, his lack of real intention to hurt her and his lack of resources to track her throughout the country [13]. In any event, the Director was of the view that (i) state protection will be available to her upon her return [14]-[17]; (ii) internal relocation is viable [18]-[20] and (iii) the applicant’s case failed to meet any of the requirement under BOR 2 and BOR 3 risk [21]-[27], Persecution risk [28]-[32] and Torture risk [33]-[35].

The Board’s Decision

11.The applicant appealed the Director’s Decision to the Board.  On 5 March 2019, the Board conducted an oral hearing.   

12.Having considered the applicant’s evidence, the Board formed the view that Fidel Mendoza had no real intention to harm the applicant. If he wanted to silence the applicant on his drug trafficking activities, he could have done so between 2013 and 2015. Regarding the sexual harassment and attempted rape, they were only bad and reckless conduct of a drunken man for personal lust rather than coercion. As to the incident about forcing the applicant to go home, there was no evidence that Fidel Mendoza intended to harm her. He could simply be doing so on the request or instruction of her mother.

13.In any event, the Board found that the applicant’s case failed to meet any of the requirement under Persecution risk [56]-[60], BOR 2, BOR 3 risk [61]-[69] or Torture risk [70]-[75]. Furthermore, internal relocation was also available to the applicant [35]-[36], [50].

14.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

15.The applicant has filed Form 86 dated 27 May 2019 for leave to apply for judicial review of the Board’s Decision.

16.The applicant filed her affirmation in support of her application and said that the Board had disregarded her dangerous situation.

DISCUSSION

17.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).

18.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

19.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.”

20.The Board had taken into consideration of the applicant’s facts and had made its assessment. The applicant’s complaint in her affirmation is not a valid reason to challenge the Board’s Decision. There is no reason for the Court to interfere with the Board’s Decision.

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

CONCLUSION

22.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 11^th 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