Surop Violeta Lopez v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1917/2019

[2024] HKCFI 3019

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1917 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 3 July 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant requested an oral hearing. However, she was absent at the hearing on 21 October 2024, 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 Filipino. She last arrived in Hong Kong to work as a foreign domestic helper (“FDH”)  on 25 October 2007. Her employment contract was prematurely terminated on 20 August 2008 and she overstayed her visitor visa since 11 September 2008. The applicant was arrested by the police for overstaying on 30 May 2009. She was fined for HK$3,000 and sentenced to imprisonment of 5 days for the said offence. The applicant made a torture claim on 15 March 2010, which was rejected on 30 April 2013. Her appeal to the Board and her subsequent application for judicial review were also dismissed on 26 June 2013 and 31 August 2015 respectively. The applicant made a further non-refoulement claim on all applicable grounds other than Torture risk[1] on 9 July 2013. The claim was made on the basis that, if refouled, she would be seriously harmed or even killed by her husband because he refused to separate with her.

5.According to the applicant, she was constantly assaulted by her husband since their marriage in 1981. In October 2007, when the applicant returned to the Philippines during her vacation, she proposed a separation with her husband after he admitted having an extramarital affair and spending money she remitted on gambling. Her husband then became furious and assaulted her (“the 2007 incident”). The applicant escaped to her mother’s home and then went to stay with her elder sister. On 25 October 2007, she returned to Hong Kong to continue her employment as FDH.

6.The applicant maintained contact with her children and was informed that her husband was still looking for her. The applicant was of the view that she could not seek protection from the police because they were corrupt and in any event they did not take any serious action when she reported the matter to them previously. She also considered internal relocation not viable because she had no friends to rely on elsewhere and she feared to be located by her husband.

7.Details of the story of the applicant can be found in paragraph 8 of the Director’s Decision dated 30 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”); 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”).

9.By way of the Director’s Decision, the Director dismissed the applicant’s claims on Persecution risk, BOR 2 and BOR 3 risk. The Director found that: (i)  the low intensity of past ill-treatment from her husband indicated that he had no real intention to seriously harm or kill her [17], [19]; (ii)  the applicant’s behaviour was inconsistent with her claimed fear against her husband [18]; (iii)  there was no evidence indicating that her husband had the means to locate her anywhere within the Philippines [20]; (iv)  state protection would be available [21]-[26] and (v)  internal relocation would be viable [27]-[32].

The Board’s Decision

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

11.The Board considered that the applicant had embellished and exaggerated her claims [105]. The Board found that her confrontation with her husband about his extramarital affair happened in the late 1980s or 1990s, but not in 2007 [107]-[108]. In any event, the Board considered that the 2007 incident was fabricated as the claimed circumstances were problematic in various aspects [109]-[113].

12.The Board formed the view that the applicant’s husband was the one who took the initiative to end the marriage [114]-[115]. Given that their marriage had irretrievably broken and they would be having separate lives, the applicant should not suffer any domestic violence from her husband upon her return to the Philippines [118]-[119].

13.Based on such findings, the Board rejected the applicant’s claim on Persecution risk, BOR 2 and BOR 3 risk [2]-[15], [126]-[128]. Furthermore, internal relocation would also be available to the applicant [16]-[18], [122]-[124].

14.The applicant’s 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 9 July 2019 for leave to apply for judicial review of the Board’s Decision.

16.The applicant has raised the grounds below in support of her application.

(1)  Procedural impropriety: failing to consider BOR 2 right to life; failing to conduct sufficient inquiry into the relevant country of origin (“COI”); failing to consider or giving reasons for BOR 3 risk.

(2)  Error/misdirection in law: failing to take into account of psychological strain and threats by her husband upon her refoulement.

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.

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, the Board rejected the applicant’s evidence. Those grounds under paragraph 16 are her bare assertions without any evidence in support. They are not valid 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.

DISPOSITION

22.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 was unrepresented and did not appear.