Galaraga Magie Bernabe v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1886/2019

[2024] HKCFI 2354

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1886 OF 2019

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BETWEEN

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J U D G M E N T

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THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 4 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).  Her application is late.  Her application shall not be later than 3 months from the date of the Board’s Decision[1]. Her application was filed on 5 July 2019, which is only one day’s late. This issue will be dealt with below.

2.The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3)  of the Rules of the High Court (“RHC”), I shall deal with her application on paper.

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 is a national of the Philippines. She worked as a domestic helper and her employment contract terminated on 16 February 2017. She did not depart and overstayed. She applied for extension of her visa, but her application was refused whereupon she lodged a non-refoulement claim on the basis that, if refouled, she will be harmed or killed by her husband, Melvin.

5.According to the applicant, she married her husband in August 2002. Her husband was a farmer. Shortly after the marriage, they had disputes and her husband assaulted her, causing injuries to her. She did not report to police. In 2008, she came to Hong Kong to work as a domestic helper. She had a boyfriend called Danny, with whom she had a baby born in June 2017. She did not let her husband know about this extra-marital relationship as her husband might kill her. She does not want to leave Danny and her baby in Hong Kong if she returns to the Philippines.

The Director’s Decisions

6.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”).

7.By way of the Director’s Decision, the Director dismissed the applicant’s claim.  The Director found that: (i)  the low intensity of past ill-treatment from the creditors is indicative of a low future risk of harm upon her return to the Philippines [15]-[18]; (ii)  state protection will be available to her upon her return [19]-[24]; (iii)  internal relocation is viable [25]-[26].

The Board’s Decision

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

9.Having considered the applicant’s evidence, the Board concluded.

“48. I reject her claim that she is in fear of Melvin who will harm or kill her if she is refouled to her country. I am satisfied that the Appellant came to Hong Kong not for protection but for work only….”

10.The Board further found that state protection would be available to her and internal relocation would be viable. For these reasons, the Board dismissed the applicant’s appeal and confirmed the Director’s decision.

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

11.The applicant has filed Form 86 dated 5 July 2019 for leave to apply for judicial review of the Board’s Decision.

12.In the affidavit in support of her application, the applicant said that she would submit additional grounds soon. However, up till now, she has not submitted any specific ground to challenge the Board’s Decision.

DISCUSSION

13.As mentioned in paragraph 1, this application is late for only one day. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1)  the length of delay; (2)  the reasons for the delay; (3)  the prospect of the intended appeal; and (4)  the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of the applicant’s case.

14.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).

15.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

16.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.”

17.The applicant has failed to raise any valid ground to challenge the Board’s Decision. 

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

DISPOSITION

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

The applicant was not represented.