Jalandoni Mary Ann Veloria v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2194/2019

[2024] HKCFI 3208

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2194 OF 2019

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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 25 July 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant asked for a hearing. She appeared before the Court on 28 October 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, the Director of Immigration is the interested party.

The applicant

4.The applicant, aged 51, is a Filipino. She arrived in Hong Kong to work as a foreign domestic helper (“FDH”) in June 2008. Her employment contract was prematurely terminated on 15 January 2009 and she overstayed since 31 January 2009. The applicant surrendered to the Immigration Department on 31 March 2009. She then made a torture claim, which was rejected on 5 June 2013 and her subsequent appeal was also dismissed on 28 November 2013. The applicant made a further non-refoulement claim on all applicable grounds other than Torture risk[1] on 8 July 2013. The claim was made on the basis that, if refouled, she would be seriously harmed or even killed by people from a finance company called Nippon (“Nippon”) and the guarantor of her loan (“the guarantor”).

5.According to the applicant, she took out a loan from Nippon in around February/March 2008 to pay the agency fee for her employment in Hong Kong. She was unable to repay the loan because she spent the money earned on her mother’s medical expenses and that her employment contract was prematurely terminated after 7 months. Due to the non-payment, people from Nippon had gone to her house threatening her mother for repayment. They also tried to seize some valuables from her home, but were driven out by the applicant’s brother. Subsequently, Nippon even filed a Court case against the applicant regarding the loan.

6.Meanwhile, the applicant also feared harm from the guarantor because she had ruined his credit record. She learnt from her family that the guarantor had threatened to kill her if she returned to the Philippine and she believed that the slashing of her mother’s handbag was done by the guarantor’s friend.

7.The applicant was of the view that she could not seek protection from the police because they would not handle private dispute and were corrupted. She considered internal relocation not viable as well because she had no family ties elsewhere and that she feared to be found by people of Nippon because it had branches all over the Philippines.

8.Details of the story of the applicant can be found in paragraph 9 of the Director’s Decision dated 5 October 2018 (“the Director’s Decision”).

The Director’s Decision

9.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”).

10.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) her claimed risk of harm was merely her speculation given the absence of past ill-treatment from people from Nippon and the guarantor [14]; (ii) there was no evidence indicating that Nippon and the guarantor had the means to locate the applicant anywhere within the Philippines [15]; (iii) state protection would be available [16]-[18] and (iv) internal relocation would be viable [19]-[20].

The Board’s Decision

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

12.The Board considered that the applicant was not a truthful witness and had fabricated her claims [48]. Upon consideration of the country of origin information, although it was accepted that loan sharks do operate in the Philippines and that it is common for Filipinos to have outstanding loans, the Board found no information about a finance company called Nippon. The applicant’s difficulty in recalling the name of the finance company and her inability to produce the loan agreement further casted doubts as to the existence of such a company and the loan [49]-[52]. Other aspects of the applicant’s claims were also problematic given the vague evidence she gave regarding the Court case, the guarantor and whether any action was taken by Nippon against her family [53]-[55].

13.Based on such findings, the Board was not satisfied that the applicant borrowed money from Nippon in 2008 with a guarantor or that that there was a Court case against her. The Board concluded that the applicant would not face a real risk of harm from Nippon or the guarantor upon return to the Philippines and rejected her claim on Persecution risk, BOR 2 and BOR 3 risk [56]-[70].

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 2 August 2019 for leave to apply for judicial review of the Board’s Decisions.

16.In her affirmation in support of her application, the applicant has raised the grounds below to challenge the Board’s Decision.

(1)  Procedural impropriety: failing to apply para.2 of the UN committee against Torture General Comment No. 2; failing to conduct sufficient inquiry into the country of origin information (“COI”) that she would face serious risk from the loan shark; failing to give reason for BOR 3 risk assessment with sufficient basis.

(2)  Error/misdirection in law: failing to take into account of psychological strain and threats to her; no sufficient basis to say that her family would not be at risk of torture and BOR 3 risk 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. Before me, the applicant simply asked the Court to review the Board’s Decision.

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 her evidence in support of her claim. This is a matter of the credibility of her evidence, which is squarely within the province of the Board. Those grounds under paragraph16 are her bare assertions without any evidence in support. There is no record that the issues of psychological stress or threat were raised before the Board. She has no reason to complain. All of the grounds are not valid to challenge the Board’s Decision.

21.I find that the applicant has failed to show that there is realistic prospect in her intended application.

DISPOSITION

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

The applicant appeared in person.