Tadiosa Josefina Exeja v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1698/2019

[2024] HKCFI 1677

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1698 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 oral submissions by the Applicant 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 31 May 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”), she appeared before the Court on 6 May 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 50, is a Filipino. She arrived in Hong Kong on 2 October 1999 to work as a foreign domestic helper. She overstayed in Hong Kong since 22 November 2003 and was arrested by the Immigration Department on 27 November 2008. She was convicted for overstaying on 29 November 2008 and was sentenced to imprisonment for 5 months. The applicant lodged a torture claim on 21 September 2009, which was rejected on 26 April 2013. Her subsequent appeal was also dismissed on 7 July 2014. On 27 May 2013, the applicant made a further non-refoulement claim on all applicable grounds other than torture risk[1]. The claim was made on the basis that, if refouled, she would be harmed or killed by her husband because she gave birth to a daughter with another man in Hong Kong.

5.According to the applicant, she married her husband in May 1994. Her husband and his cousins were members of a gangsters group. Her husband was a violent and bad-tempered man, who often hit her without a particular reason. The applicant sustained bumps and bruises during the process, but she did not seek medical treatment because she had no money.

6.In around September 1999, the applicant’s husband slapped the applicant on her face with bare hand and pushed her son onto the ground when he asked her for money at home. The applicant reported the assault to the police, but she was demanded money for registration of the complaint. Upon paying 150 Pesos for registration, the police told her that they would not handle the matter due to its domestic nature.

7.In addition to the incidents above, the applicant also claimed that on one occasion, her husband fired a gunshot at her and the shrapnel grazed her abdomen. She took around two weeks to recover, leaving a scar on her abdomen.

8.On 2 October 1999, the applicant came to Hong Kong to work as a foreign domestic helper and she met her boyfriend in Hong Kong in February 2004. The applicant soon became pregnant. In May 2004, she told her husband her extramarital affair. On 19 February 2005, the applicant gave birth to her daughter in Hong Kong.

9.Between May 2004 and 2006, the applicant contacted her husband about twice a year by phone, telling him that they were incompatible and should therefore separate. One day in 2006, when the applicant planned to surrender and return to the Philippines, her husband threatened to kill her and her daughter over the phone if they went back to the Philippines. On 23 December 2012, the applicant’s husband called her again and repeated his death threats. In the meantime, she also claimed to receiving threatening text messages from her husband until 23 March 2018.

10.The applicant last contacted her family in April 2013. Her father advised her not to come back because her husband had not accepted her situation. Her husband still went to her house to harass her parents and demand the applicant’s whereabouts. He also took away valuables in the house.

11.The applicant was of the view that she could not seek protection from the police because they were corrupt and she had no money to bribe them. She also considered internal relocation not viable because her relatives would not help her either because they did not have the resources or they just simply thought what she had done in Hong Kong did not endorse their assistance. Furthermore, the applicant believed that she would be found anywhere within the country by her husband.

12.Details of the applicant’s story can be found in paragraph 10 of the Director’s Decision dated 27 April 2018 (“the Director’s Decision”).

The Director’s Decision

13.The Director considered the applicant’s claim in relation to the following risks:

a.  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”);

b.  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

c.  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”).

14.By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that the past behaviour of the applicant’s husband showed that he had no real intention to seriously harm or kill her. In any event, the claimed threat from her husband should have dissipated given there had been an elapse of 19 years since her departure from the Philippines to Hong Kong. The applicant’s decision for not seeking protection at the earliest opportunity was also inconsistent with a person who is genuinely in fear of being harmed [25]-[30].

15.Furthermore, (i) state protection would be available to her upon her return [31]-[32]; (ii) internal relocation would be viable [33]-[38] and (iii) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [39]-[44] or Persecution risk [45]-[51].

The Board’s Decision

16.The applicant appealed the Director’s Decision to the Board. On 29 April 2019, the Board conducted an oral hearing.

17.The Board found the applicant untruthful [21]. It noted that she gave unreliable evidence regarding the group that her husband had been involved in [22]-[28]. She also gave vague and unpersuasive evidence as to (i) whether she had reported the matter to the police [30]-[46]; (ii) the claimed past incidents of physical harm from her husband [47]-[56], [73]-[75] and (iii) the receipt of threatening text messages from her husband [57]-[68]. Furthermore, there were inconsistencies in her evidence regarding the timing and the circumstances in which she separated from her husband and the living arrangement of her son [76]-[82], [90]-[93]. Her explanation as to why she disclosed her extramarital affairs in Hong Kong to her husband was also unconvincing [83]-[89].

18.The Board did not accept the applicant to be a credible witness and rejected her claims entirely. It considered that the applicant had fabricated her claims to prolong her stay in Hong Kong and that she would not face a real risk of harm upon return [95]. In any event, the country of origin information (“COI”) indicated that there were support for single/unwed mothers and illegitimate children in the Philippines [96]-[102]. State protection and internal relocation would also be available according to COI [104]-[114].

19.Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Persecution risk or BOR 2 and BOR 3 risk [115]-[124]. 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

20.The applicant has filed Form 86 dated 20 June 2019 for leave to apply for judicial review of the Board’s Decision.

21.In the affidavit in support of her application, the applicant did not raise any specific ground.

DISCUSSION

22.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).

23.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 she understands the Board’s Decision and she is not saying that the Board was wrong, but she wants to stay here for the sake of her daughter, who is studying here.

24.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.”

25.The applicant has raised no valid ground to challenge the Board’s Decision.

26.It follows that she fails to show that she has any realistic prospect of success in her propose judicial review of the Board’s Decision.

CONCLUSION

27.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 24^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