Badua Bella Narciso v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2120/2019

[2024] HKCFI 3155

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2120 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 4 June 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”), which the applicant had mis-described as 27 June 2019.

2.The applicant did not request a hearing. 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, the Director of Immigration is the interested party and the date of the Board’s Decision is 4 June 2019.

The applicant

4.The applicant, aged 53, is a Filipino. She was employed as a domestic helper until her contract terminated on 20 April 2018. She departed Hong Kong for Lo Wu and returned on the same day on 3 May 2018 as a visitor. She was allowed to stay as such until 17 May 2018. However, she overstayed since 18 May 2018. By written representation dated 24 and 25 October 2018, she lodged a non-refoulement claim on the basis that, if refouled, she would be threatened and killed by the Nacionalista Party because she was a member of the Liberal Party. She was suspected to have misled the elderly to vote for Liberal Party.

5.According to the applicant, she was employed as a watcher in the Elections for mayor and for village chief. She was responsible to guide the elderlies to vote. After the elections, she received 3 letters accusing her of misleading the elderlies to vote for Liberal Party, a party she belonged. She was threatened that she had to pay for her wrongdoings with her life. She tried to move to live in some other places. But she finally decided to leave her country for Hong Kong.

6.Details of the story of the applicant can be found in paragraph 6 of the Director’s Decision dated 28 January 2019 (“the Director’s Decision”).

The Director’s Decision

7.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”).

8.By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that: (i) the low intensity and frequency of past ill-treatment indicated a small future risk of harm upon her return to the Philippines [13]-[18]; (ii) state protection would be available [19]-[23] and (v) internal relocation would be viable [27]-[33].

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board. On 25 April 2019, the Board conducted an oral hearing.

10.The Board found:

“19. The Applicant presented different accounts of claim, which leads me to the reasonable conclusion that the Applicant was not aware of the actual basis of her claim. …

21. On the vague, unconvincing and contradictory accounts provided by the Applicant, I do not find there is any reasonable probable truth in the story told by the Applicant. …

23. I do not accept on reasonable probability that the Applicant had been threatened after the 2004 election.”

11.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

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

13.The applicant has not raised any specific reason to challenge the Board’s Decision.

DISCUSSION

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 Decisions 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.For the reasons given, the Board rejected the applicant’s evidence in support of her claim.

18.There is no valid reason that this Court should interfere with the Board’s finding of the facts.

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

DISPOSITION

20.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.