Soriano Riza Acosta v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2238/2019

[2025] HKCFI 134

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2238 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 a number of decisions, of which only the Decision dated 12 July 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”) is amenable to this application. The others fail in limine.

2.The applicant requested an oral hearing. She appeared before the Court on 16 December 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 and the Director of Immigration is the interested party.

The applicant

4.The applicant, aged 45, is a Filipino. Her employment contract as a foreign domestic helper (“FDH”) was prematurely terminated on 27 January 2014 and she had overstayed since 11 February 2014. The applicant surrendered to the Immigration Department on 16 March 2015 and she made a non-refoulement claim on 13 April 2015. The claim was made on the basis that, if refouled, she would be seriously harmed or even killed by her uncle and his family due to a land dispute.

5.According to the applicant, her father died in June 2008. Thereafter, her uncle had approached her family to discuss the ownership of the land left behind by her grandfather. Yet, no consensus could be reached and this often led to arguments between the applicant’s family and her uncle’s family. On 26 February 2012, a fight broke out between the two families. Although the matter was reported to the barangay, no action had been taken. On 27 February 2012, the applicant returned to Hong Kong to resume her FDH employment, after which her uncle continued to threaten her through her family and friends.

6.The applicant claimed that her uncle had moved elsewhere together with his family subsequently. She had never sought protection from the police as she believed that they would not interfere in private matters. The applicant also considered internal relocation not viable because she lacked the necessary financial capability and she believed that her uncle could easily locate her because he was wealthy.

7.Details of the story of the applicant can be found in paragraph 7 of the Director’s Decision dated 26 January 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”);

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”).

9.By way of the Director’s Decision, the Director dismissed the applicant’s claim on Torture risk, Persecution risk, BOR 2 and BOR 3 risk. The Director found that: (i) the low intensity of past ill-treatment from her uncle and his family indicated a small future risk of harm upon her return to the Philippines [14]; (ii) the claimed threat no longer existed given the relocation of her uncle and his family [15]; (iii) the conflict with her uncle was solely private in nature with no evidence of state involvement [16]; (iv) the applicant’s delay in seeking non-refoulement protection was inconsistent with the behaviour of someone genuinely in fear [17]; (v) state protection would be available [18]-[21] and (vi) internal relocation would be viable [22]-[23].

The Board’s Decision

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

11.The Board considered the applicant’s claims about the land dispute and the quarrel might have some credence [94]-[95]. Yet, her claims about the fight on 26 February 2012 and the threats made by her uncle were found not credible given the inconsistencies and implausibility of her evidence [96]-[102].

12.In any event, the applicant as well as her family had never suffered any harm that reached the requisite level of severity and there was also no evidence of state involvement in the matter. Based on such findings, the Board rejected the applicant’s claim on Torture risk, Persecution risk, BOR 2 and BOR 3 risk. Furthermore, state protection and internal relocation would be available according to the country of origin information [111]-[183].

13.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

14.The applicant has filed Form 86 dated 6 August 2019 for leave to apply for judicial review of the Board’s Decision.

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

(1)  the hearing bundle and the Board’s Decision were in English and she did not have interpretation service;

(2)  she was not advised of her rights;

(3)  she did not have legal assistance;

(4)  the adjudicator had wrongly exercised case management by adopting formula approach in coming to conclusion of the claim;

(5)  the adjudicator had not made the balancing exercise in respect of the County of Origin Information (“COI”) properly;

(6)  the Board had not attained high standard of fairness.

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 Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that she did not mean that the Board was wrong. But she asked this Court to review the Board’s Decision.

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.Under paragraph 14, ground (1) fails because the Court of Appeal had ruled that this ground is not valid to challenge the Board’s Decision[1]. Ground (2) fails because she has not set out what right she referred to; ground (3) fails because the Court of Appeal has ruled that she was not entitled to free legal assistance all the time throughout the proceedings[2]. Grounds (4), (5) and (6) fail as these are her own bare assertions or opinions without any evidence in support.

20.The applicant has raised no valid ground 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 appeared in person.