Hermosa Lea Malawis v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1673/2019

[2024] HKCFI 1547

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1673 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 11 June 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”), the applicant appeared before the Court on 24 April 2024.

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 33, is a Filipino.  She last arrived in Hong Kong on 17 February 2017 to work as a foreign domestic helper.  Her employment was prematurely terminated on 30 September 2017 and she overstayed since 15 October 2017. The applicant was arrested by the police on 16 April 2018 and she made a non-refoulement claim on 20 April 2018.  The claim was made on the basis that, if refouled, she would be harmed or even killed by her husband because he wanted custody of their daughter.

5.According to the applicant, she married her husband in November 2010.  Subsequently, their relationship turned sour and they had a dispute over the custody of their daughter.  On 31 January 2017, while the applicant was back to the Philippines during her vacation, her husband together with his cousin and his uncle came to her parents’ home to assault the applicant, her parents and her elder brother.  Two days later, the applicant’s husband returned.  After burning all of the applicant’s documents and clothes, he tried to stab her neck with a knife.  The applicant managed to escape with her daughter to her aunt’s home after knocking him down.  However, her husband managed to find her and came with three police officers three days later.  The applicant was arrested for abducting her daughter and detained for 24 hours.  Eventually, she was released due to lack of evidence.

6.In February 2017, the applicant came to Hong Kong to work as a foreign domestic helper.  When the applicant called her parents on 31 March 2018, she was advised not to return to the Philippines because her husband was still in search of her.  

7.The applicant did not believe that she could seek help from the police.  She also considered internal relocation not viable because her husband had a lot of connection with the politicians, so that she could still be located elsewhere within the Philippines.

8.Details of the applicant’s story can be found in paragraph 8 of the Director’s Decision dated 5 October 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 (i) there were no substantial grounds to believe that the perceived risk of harm from her husband was real and foreseeable [14]; (ii) state protection would be available to her upon her return [15]; (iii) internal relocation would be viable [16] and (iv) the applicant’s case failed to meet any of the requirement under BOR 2 and BOR 3 risk [18]-[23], Persecution risk [24]-[30] or Torture risk [31]-[33].

The Board’s Decision

11.The applicant appealed the Director’s Decision to the Board.  On 20 March 2019, the Board conducted an oral hearing.

12.The Board noted that the applicant’s evidence at the hearing differed in important respects from her previous claims.  There were inconsistencies as to (i) when she last saw her husband [31]; (ii) the whereabouts of her daughter [32]; (iii) custody issues regarding her daughter [33] and (iv) her husband’s political connections [34].  When the applicant was asked about such inconsistencies, she reacted evasively [35].

13.Based on such findings, the Board considered the applicant’s evidence unreliable and her claims in general were not credible.  They failed to see that she would face a real risk of ill-treatment by her husband if she returned to the Philippines [36]-[40].  In any event, the applicant could relocate to her brother’s home to avoid the claimed threats [41].

14.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 [42]-[51].  Her appeal was therefore dismissed and the Director’s Decision was confirmed.

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

15.The applicant has filed Form 86 dated 18 June 2019 for leave to apply for judicial review of the Board’s Decision.

16.In the affidavit in support of her application, the applicant said that she cannot go back to her country without raising any specific ground.

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 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).

18.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 that she considers that the Board was wrong because it did not believe her story.  She wants the Court to consider the Board’s Decision.

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.For the reasons given by the Board above, the Board did not accept the applicant’s evidence and dismissed her appeal.  There is no valid ground from the applicant to challenge the Board’s Decision.

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

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 20^th day of June 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