Caing Devi Jane Cabugsa v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1282/2019

[2024] HKCFI 1011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1282 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 10 May 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, 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 last arrived in Hong Kong on 1 March 2016 to be employed as a domestic helper but her contract was prematurely terminated on 17 November 2016.  She did not depart. She surrendered to the Immigration Department on 5 December 2016.  She made a non-refoulement claim on 2 February 2017 on the basis that she would be harmed or killed by her paternal uncle (Caing Charlie) and parents due to a domestic dispute.

5.According to the applicant, her parents separated shortly after she was born (eight months old) and she was therefore under the care of her grandparents during childhood.  However, she would often suffer verbal and mental stress from Charlie after he moved into the grandparents’ home when she was 13 years old.  She was even beaten by Charlie on one occasion.  When she was 14 years old, she went to her mother’s place as she could no longer tolerate the abuse by Charlie. Sadly, her mother treated her as a servant rather than cared for her.  Abuse was frequent from her mother and this continued until 2009 when she sought employment in Manila.  When her father discovered she was working, he demanded money from her.  In the circumstances, she decided to seek employment abroad and made arrangements to work in Hong Kong.  Her last contact with Charlie was when she was 14 years old and her mother in 2016.  Details of her claim are set out at [7] of the Notice of Decision dated 3 April 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) the applicant’s injuries did not amount to a “minimum level of severity” and there was nothing to suggest she had suffered any serious physical or mental harm [16]; (ii) the fact that Charlie has not attempted to contact her since she was 14 years old is indicative that there was unlikely any adverse interest to harm her in light of the lapse of time [18]; (iii) state protection would be available to her [21] – [23]; and (iv) internal relocation was a viable alternative [24] and [25].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 11 January 2019, the Board conducted an oral hearing for her appeal, during which she elected to give evidence.  

9.The Board recapped the applicant’s claim [34] – [54] and discussed her evidence at the hearing [55] – [81].  Having considered the totality of evidence, the Board held the applicant was a mendacious witness and found her claim to be incredible [88].  Several factors contributed to the Board’s adverse findings, such as: (i) her alleged fear from her uncle was from nearly a decade ago and she made no reports to the police nor sought medical assistance for her injuries [85]; and (ii) her fear of harm from her mother was supported without any documentation or statements from relatives to substantiate this claim [86].

10.In assessing the relevant grounds of non-refoulement protection, the Board found there was nothing to substantiate BOR 2 and BOR 3 risk [91] – [95], [100] – [103].  As for Persecution risk, the Board did not accept the applicant had a well-founded fear or persecution in light of its factual findings above [96] – [99].  Lastly, she has admitted that she was not in fear of harm from any public officials or the police, and based on available COI, the Board did not accept there would be substantial ground to believe that there is a risk of danger to the applicant if she is refouled under Torture risk [104] – [108].

11.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

12.On 14 May 2019, the applicant filed Form 86 for leave to apply for judicial review of the Board’s Decision.

13.The applicant has filed an affidavit, in which she said the Board disregarded her dangerous situation.

DISCUSSION

14.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).

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

16.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.”

17.For the reasons set out in paragraphs 9 & 10, the Board refused to accept that there is any genuine fear of risks of harm to the applicant if she returned to the Philippines.

18.The applicant’s submission in paragraph 13 is her general comment without any evidence to support and is not valid to challenge the Board’s Decision.

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 for the applicant to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss her application.

Dated the 18^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