Zagado Maria Jesseth Gazmen v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2624/2019

[2025] HKCFI 792

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2624 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 26 August 2019 of the Torture Claims Appeal Board (“the Board’s Decision).

2.The applicant requested an oral hearing. She appeared before the Court on 12 February 2025.

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 56, is a national of Philippines. The applicant arrived in Hong Kong in March 2006 as a domestic helper and after her contract was prematurely terminated on 25 October 2014, she overstayed since 3 December 2014. She surrendered to the Immigration Department on 7 January 2015 and subsequently raised a non-refoulement claim.

5.The applicant’s claim was based on her fear of being harmed or killed by (1) her ex-partner Raul and (ii) Raul’s brother who she witnessed had shot another man.

6.According to the applicant, in 2013, she returned to the Philippines and lived in her boyfriend, Raul’s house. She saw Raul’s brother, Domingo, killed another man called Edmond with a gun. Domingo warned her not to tell anybody else about this or he would kill her. Her boyfriend told her to return to the Philippines. She refused because she did not want to mention Domingo’s murder case to him. Raul was jealous as he considered that she might have another boyfriend in Hong Kong. He warned that is she returned, he would kill her. Details of the story are set out in paragraph 6 of the Notice of Decision dated 8 February 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 torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(b)  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”);

(c)  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

(d)  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”).

8.By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that: (i)

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board. On 26 April 2019, the Board conducted an oral hearing for her.

10.Having considered the evidence, the Board extensively discussed the applicant’s claim and listed evidence that was established with certainty [113-114]; evidence that the Board think was probably true [115]; but found serious credibility problems with the applicant’s evidence [120-127]. In any event, the Board was satisfied that state protection was available based on the Country of Origin Information [147-149]; and the applicant could internally relocate [186-188]. In conclusion, the Board held the applicant’s claim failed under all applicable grounds. It therefore dismissed her appeal and confirmed the Director’s Decision.

Application for leave to apply for judicial review of the Board’s Decision

11.The applicant has filed Form 86 dated 10 September 2019 for leave to apply for judicial review of the Board’s Decision.

12.In the applicant’s affidavit in support of her application, the applicant exhibited the Board’s Decision and hearing bundle and included grounds which can be summarized as follows: procedural impropriety; irrationality; and misdirection in law. However, the applicant did not put forth any particulars in support of her grounds.

DISCUSSION

13.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).

14.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 wanted to withdraw her application.

DISPOSITION

15.In view of her application for withdrawal of her application and there being no other outstanding matter in this action, I dismiss her application.

The applicant appeared in person.