Nanca Wallen Javier v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2242/2023

[2024] HKCFI 1114

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2242 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 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 16 November 2023 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 26 February 2024.

The applicant

3.The applicant, aged 36, is a Filipino.  She arrived in Hong Kong on 25 January 2019 to work as a foreign domestic helper.  She overstayed since 8 May 2021 and she surrendered to the Immigration Department on 10 May 2021.  The applicant made a non-refoulement claim on 14 May 2021 and 20 May 2021.  The claim was made on the basis that, if refouled, she would be harmed or even killed by her father and her separated husband because of her pregnancy with her boyfriend in Hong Kong.

4.According to the applicant, she married her husband in 2005 and had two daughters with him.  Their relationship worsened in 2015 after the applicant discovered her husband had an affair.  She then moved back to her parents’ home with her daughters.  The applicant worked as a foreign domestic helper in Dubai between 2016 and 2018.  In 2018, upon her return to the Philippines, she requested her husband for an annulment of their marriage but was refused.  The applicant travelled to Hong Kong to work as a domestic helper in January 2019.  He met her boyfriend in June 2020 and she got pregnant in around January 2021.  When her father and her separated husband knew about her pregnancy, they were enraged and threatened to harm/kill both the applicant and her baby if they return to the Philippines.  Since then, the applicant had no contact with her father or her separated husband.  She even blocked the number of her separated husband on 15 May 2021.

5.The applicant did not seek help from the police as she believed they would regard her problem as a personal matter and would not render her assistance.  She considered relocation within the Philippines not viable as well because she had no friends or relatives elsewhere.  She also had no financial means to settle in other parts of the country.

6.Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 19 October 2021 (“the Director’s Decision”).

The Director’s Decision

7.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”).

8.By way of the Director’s Decision, the Director dismissed the applicant’s claim.  The Director found that the absence of past ill-treatment from her father and her separated husband indicated that they had no real intention to harm the applicant, so she did not face a real and imminent risk [14]-[15].

9.In any event, (i) state protection will be available to her upon her return [17]-[21]; (ii) internal relocation is viable [16], [22]-[23] and (iii) the applicant’s case failed to meet any of the requirement under BOR 2 and BOR 3 risk [24]-[29], Persecution risk [30]-[35] or Torture risk if she returns to the Philippines [36]-[39].

The Board’s Decision

10.The applicant appealed the Director’s Decision to the Board.  On 29 September 2023, the Board conducted an oral hearing. The applicant had given oral evidence. 

11.Having considered the applicant’s evidence, the Board was of the view that her evidence was consistent and accepted it to be a true account [25].  However, the Board found that the Philippines had mechanism to protect victims from domestic violence, for which the applicant could make use of, such as :

a.  there is specific legislation to curb and penalize violence against children and women;

b.  women and children protection desks have been established in nearly all police stations in the Philippines and they are staffed by specially trained police officers to handle domestic violence against women and children;

c.  specific programmes in hospitals for specific women and children, providing legal services  for them;

d.  outside organizations providing counselling, legal services and shelter to women and children at risk of domestic violence;

e.  specific task force of the Department of Justice for protection of women and children; and

f.  there are 45 shelters and residential care facilities for women and children of domestic violence.

12.Although the above facilities are in great demand and the waiting time for some of the services make take several months, there is no reason that they are not available to the applicant.  Furthermore, internal relocation is also available to her [27]-[38].

13.Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Persecution risk, BOR 2 and BOR 3 risk or Torture risk [39]-[42].  The Board therefore dismissed the applicant’s appeal and confirmed the Director’s Decision.

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

14.The applicant has filed Form 86 dated 13 December 2023 for leave to apply for judicial review of the Board’s Decision.

15.In support of her application, the applicant filed an affidavit, in which she said that the Board’s Decision is unreasonable; that she wants to stay in Hong Kong to look after her son as the son’s father has to work and it is dangerous to return to the Philippines.

DISCUSSION

16.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s 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).

17.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.  Before me, the applicant said it is not easy for the police to help her.  Her son is here in Hong Kong and nobody will take care of him if she returns to the Philippines.  She does not want her son to leave his father here.  Also, it will be dangerous for her to return to the Philippines with her son as she does not know what her ex-husband will do to them.

18.The Board accepted the applicant’s evidence.  But, for the reasons set out in paragraphs 10-12, the Board takes the view that the applicant and her child have no real risk of harm if they return to the Philippines.  These facilities answer the applicant’s complaints in paragraph 15 and before this Court.

19.There is no valid reason from the applicant that the Board’s views should not be accepted.  The Court sees no reason to interfere with the Board’s Decision.

20.The applicant therefore fails to show that she has any realistic prospect of success in her proposed in her judicial review of the Board’s Decision.

CONCLUSION

21.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 7^th day of May 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