Javier Adelyn Garceniego v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2257/2019

[2025] HKCFI 72

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2257 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 Torture Claims Appeal Board/Non-refoulement Claims Petition Office’s Decision dated 25 June 2019 (“the Board’s Decision”) dismissing her appeal against the Director’s Decision as described below, rejecting her non-refoulement claim.

2.The applicant asked for a hearing. However, she was absent at the hearing on 25 November 2024. I shall deal with her application of the papers.

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, aged 47, is a Filipino. She last arrived in Hong Kong as a visitor. She overstayed since 24 May 2018 and she surrendered to the Immigration Department on the same day. The applicant made a non-refoulement claim on 7 August 2018. The claim was made on the basis that, if refouled, she would be seriously harmed or even killed by her husband.

5.According to the applicant, she suffered domestic violence from her husband since their marriage in 2000. Although she reported the matter to the village captain in 2001 after her daughter was born, her husband’s abuse continued. In 2005, the applicant went to work in Singapore as she could no longer withstand her husband’s behaviour.

6.When the applicant returned to the Philippines in March 2008, she found out that her husband had married another woman. On that occasion, her husband assaulted her and threatened her with a long knife. Thereafter, the applicant went to stay with her sister in Manila for 3 months and then came to Hong Kong to work as a foreign domestic helper (“FDH”) in July 2008.

7.While in Hong Kong, the applicant learnt from her sister in October 2008 that her husband had been looking for her and had vandalised her sister’s house after she refused to disclose the applicant’s whereabouts. The applicant had never sought any assistance from the authorities because they were corrupt and that some of her husband’s relatives were influential government officials. She also considered internal relocation not viable because she lacked the necessary financial capability.

8.Details of the story of the applicant can be found in paragraph 8 of the Director’s Decision dated 29 January 2019 (“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”);

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”).

10.By way of the Director’s Decision, the Director dismissed the applicant’s claims on Torture risk, Persecution risk, BOR 2 and BOR 3 risk. The Director found that: (i) the claimed past ill-treatment from her husband failed to attain a minimum level of severity [13.1]-[13.2]; (ii) there was no evidence showing that her husband was as powerful as she asserted [13.3]; (iii) state protection would be available [14] and (iv) internal relocation would be viable [15].

The Board’s Decision

11.The applicant appealed the Director’s Decision to the Board. The Board considered that the appeal could be justly determined without a hearing because there was no issue that needed clarification [19]. The appeal was therefore proceeded on such basis [21].

12.The Board found the applicant had never suffered any serious physical injuries from her husband’s domestic violence. In any event, the matter concerned was a domestic dispute with no evidence of involvement from the authorities. Furthermore, state protection and internal relocation would also be available according to the country of origin information. Based on such findings, the Board rejected the applicant’s claim on Persecution risk, Torture risk, BOR 2 and BOR 3 risk [23]-[46].

13.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

14.The applicant has filed Form 86 on 7 August 2019 for leave to apply for judicial review of the Board’s Decision.

15.In her affidavit in support of her application, the applicant submitted that her life will be in danger as her husband may kill her. Furthermore, she is now under medical treatment after her surgery in her stomach and there have been infections at the stitches areas. If she is returned to the Philippines, she will not be able to afford the medical expenses there.

DISCUSSION

16.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).

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

18.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.”

19.The applicant’s grounds under paragraph 14 are not valid to challenge the Board’s Decision. The alleged risk of harm from her husband has been assessed by the Board. Her allegations were not accepted. As to her health condition, there is no evidence to show that her life will be endangered if she is sent back to the Philippines. From the medical reports, there is no certification that he life in danger. Whether she should be returned to the Philippines under her present condition is a matter for the Director to make his decision, based upon her submissions to him and medical evidence. But this factor is also not a valid reason to challenge the Board’s Decision.

20.There is no reason for the Court to interfere with the Board’s Decision.

21.The applicant fails to show that she has any realistic prospect of success in her intended 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.