Cantores Merriam Buslay v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1749/2019

[2024] HKCFI 1685

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1749 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 14 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”), she appeared before the Court on 3 June 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 51, is a Filipino. She first arrived in Hong Kong on 29 November 2011, after which she travelled frequently between Hong Kong and Mainland China until May 2013. She last arrived in Hong Kong on 16 May 2013 as a visitor and overstayed since 31 May 2013. The applicant was arrested by police on 10 July 2013 and she lodged a non-refoulement claim on 3 March 2014. The claim was made on the basis that, if refouled, she would be harmed or killed by Joseph, who was connected to the New People’s Army (“NPA”), because she witnessed Joseph murdering his wife.

5.According to the applicant, she was having a vacation at her brother’s place in March 2011. In around August 2011, she went to Joseph’s house and accidentally witnessed him killing his wife (“the murder incident”). She was so scared that she did not return to her brother’s home, but back to her hometown instead. The applicant claimed that Joseph and his wife were on friendly terms with NPA because they supplied rice to them.

6.The applicant was later informed by her relative that on the same day after the murder incident, Joseph visited her brother’s home asking for her whereabouts. He also threatened to kill the applicant if she reported the murder incident to the police and to harm her brother’s family if they failed to reveal the applicant’s whereabouts. Her brother’s family did not dare to report the matter to the police because they were being monitored by NPA members. The applicant did not report the matter to the police either because she was afraid that Joseph would take revenge on her.

7.The applicant stayed in her home village for three more weeks following the murder incident, after which she went to Manila and eventually came to Hong Kong in November 2011. When the applicant contacted her relative in December 2014, she was informed that Joseph was still looking for her at her brother’s home.

8.The applicant was of the view that she could not seek protection from the police because they favoured rich people like Joseph, but not ordinary people like her. She also considered internal relocation not viable because Joseph could use his money and NPA network to locate her.

9.Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 22 May 2015 (“the Director’s 1^st Decision”).

The Director’s Decisions

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

a.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”);

b.  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”); and

c.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”).

11.By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that (i) the absence or low intensity and frequency of past ill-treatment from Joseph and the NPA members indicated a small future risk of harm upon her return to the Philippines [12]; (ii) state protection would be available to her [13]; (iii) internal relocation would be viable [14]-[17] and (iv) the applicant’s case failed to meet any of the requirements under BOR 3 risk [18]-[20], Persecution risk [21]-[25] or Torture risk [26]-[28].

12.In the Notice of Further Decision dated 8 June 2017, the Director also rejected the applicant’s claim on BOR 2 risk (“the Director’s 2^nd Decision”) for the reason that there was no evidence to show that her right to life under BOR 2 would be violated upon her return.

The Board’s Decision

13.The applicant appealed the Director’s 1^st Decision to the Board. Given the availability of the Director’s 2^nd Decision, the Board decided to determine the appeal on all applicable grounds at one go, i.e. including BOR 2 risk. The hearing was scheduled on 28 August 2018, for which the applicant failed to attend. Notice of the Board’s intention to determine the applicant’s appeal in her absence was then sent to her, but the applicant failed to respond within 7 days. The appeal was therefore determined in her absence [7].

14.The Board considered that the low intensity of threat brought by Joseph indicated that he had no real intention to physically harm the applicant or her family, so that the applicant would not face a genuine and substantial risk upon return to the Philippines [28]-[29]. In any event, state protection and internal relocation would also be available according to the country of origin information [30]-[34].

15.Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk, Persecution risk or Torture risk [8]-[21], [35]-[38]. The Board therefore dismissed the applicant’s appeal and confirmed the Director’s 1^st and 2^nd Decisions.

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

16.The applicant has filed Form 86 dated 24 June 2019 for leave to apply for judicial review of the Board’s Decision.

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

DISCUSSION

18.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).

19.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 did not receive the Board’s letter informing her of the date of hearing, nor did she receive the Board’s letter demanding explanation for her absence in the first instance. I asked her if she had changed her address. She said that she had not changed her address.

20.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.”

21.As the applicant said that she had not changed her address, the Board’s notice to hear and the letter demanding explanation for her absence in the first instance were sent to her last known address and she was deemed to have received them under section 37ZV of the Ordinance[1].

22.The Board had considered the evidence before it and concluded that the applicant’s case failed to meet any of the requirements of the applicable risks.

23.The applicant has raised no valid reason to challenge the Board’s Decision.

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

CONCLUSION

25.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