Lucero Elvira Olpindo v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1796/2019

[2024] HKCFI 2230

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1796 OF 2019

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BETWEEN

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Judgment

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THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 3 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 8 July 2024.

The applicant

3.The applicant, aged 45, is a Filipino. She last arrived in Hong Kong to work as a foreign domestic helper on 2 January 2016. Her employment contract was pre-maturely terminated on 14 August 2017 and she overstayed since 29 August 2017. The applicant surrendered to the Immigration Department on 4 September 2017 and she made a non-refoulement claim on 3 January 2018. The claim was made on the basis that, if refouled, she would be seriously harmed or even killed by her husband.

4.According to the applicant, in 2010/2011, she saw on Facebook that a woman was communicating with her husband. She later found out that the woman had been having an extramarital affair with her husband and they even had a baby. The applicant therefore confronted her husband when she returned to the Philippines in 2011 and their marital relationship deteriorated rapidly. The applicant claimed that she had separated with her husband and moved to live in her mother’s house with her children since 2010. Between 2011 and 2013, whenever her husband came to visit the children, they would have arguments, which sometimes turned into fights.

5.In January 2015, when the applicant was celebrating New Year’s Eve at her parents-in-law’s house, her husband got drunk and repeatedly asked her to get back to him. Upon her refusal, her husband pointed a gun at her and accused her for having an affair in Hong Kong (“gun pointing incident”). The applicant believed that her husband was falsely accusing her because he wanted to twist the situation around. Since then until she returned to Hong Kong around 6 January 2015. Whenever she met her husband, they would end up in serious arguments/fights. There was even an occasion when her husband pushed her so hard that her head almost hit on a concrete wall. Upon the applicant’s return to Hong Kong, she kept receiving messages from her husband that he would kill her upon her return.

6.The applicant considered internal relocation not viable because her husband was a civil servant, so that he could utilise his network to locate her easily. She also claimed that she lacked financial resources for relocation. Meanwhile, the applicant had never sought help from the police because her husband had connections with them.

7.Details of the story of the applicant can be found in paragraph 6 of the Director’s Decision dated 8 November 2018 (“the Director’s Decision”).

The Director’s Decision

8.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”);

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”); and

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

9.By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director considered the applicant’s claim was based largely on speculation. In any event, (i) the low intensity and frequency of past ill-treatment from her husband indicated that he had no real intention to seriously harm or kill her [15]-[16]; (ii) her delay in seeking non-refoulement protection was inconsistent with the behaviour of someone genuine in fear [17]; (iii) state protection would be available to her [18]-[22]; (iv) internal relocation would be viable [23]-[29] and (v) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [30]-[35], Persecution risk [36]-[41] or Torture risk [42]-[44].

The Board’s Decision

10.The applicant appealed the Director’s Decision to the Board. On 24 April 2019, the Board conducted an oral hearing.

11.The Board found the applicant gave inconsistent and conflicting evidence regarding (i) how she learnt about the extramarital affair of her husband [44]; (ii) her living arrangements when she returned to the Philippines in 2011 [45]; (iii) her encounters with her husband during 2011 to 2013 when she resided in the Philippines [46]; (iv) the circumstances of the gun pointing incident [47]; (v) whether she made a report to the village chief [48] and (vi) the aftermath of the gun pointing incident until she left for Hong Kong in January 2015 [49].

12.The Board accepted that the applicant’s husband might have had an extramarital affair. However, the Board found that the applicant and her husband had separated since 2010, after which she had not experienced any problem with him, including the claimed regular fighting between 2011 and 2013, the gun pointing incident, the fighting after the gun pointing incident until she left for Hong Kong and the harassment/threats she received while in Hong Kong [52]. As such, the applicant should not face a real risk of serious harm upon return to the Philippines [53]-[54].

13.The Board concluded that that the applicant’s case failed to meet any of the requirements under Torture risk, BOR 2 and BOR 3 risk or Persecution risk [12]-[28], [61]-[65]. Furthermore, internal relocation would also be available according to the country of origin information [55]-[60].

14.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

15.The applicant has filed Form 86 on 28 June 2019 for leave to apply for judicial review of the Board’s Decision.

16.In her affirmation in support of her application, the applicant has raised the grounds below:

(1) she was not given a chance, nor was she advised to make final submissions to the Board;

(2) the Board relied on the source of news which is not officially recognized or it is simply hearsay; and

(3) the Board had made groundless speculation that it is safe for her to return to her country of origin.

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 the Board did not understand her situation and relocation in her country.

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 above, the Board rejected the applicant’s evidence and found that she will not be subjected to any harm if she returns to her country.

21.Those reasons under paragraph 16 are not valid reasons to challenge the Board’s Decision. She was at liberty to make submissions at the end of the hearing before the Board. The other grounds are simply her opinions without any evidence in support. There is no reason for this Court to interfere with the Board’s Decision.

22.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

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

The applicant appeared in person.