Santiago Jasmin Cardines v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3017/2019

[2025] HKCFI 880

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 3017 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 14 May 2019 of the Torture Claims Appeal Board (“the Board’s Decision”). Her application is late. Her application shall not be later than 3 months from the date of the Board’s Decision[1], which expired on 14 August 2019. Her application was filed on 14 October 2019 and is therefore late for 2 months. This issue will be dealt with below.

2.The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), 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 and the Director of Immigration is the interested party.

The applicant

4.The applicant, aged 59, is a national of the Philippines. She came to Hong Kong as a domestic helper on 2 February 2012. Her employment contract was terminated, but she did not depart. She overstayed since 12 June 2012. On 7 June 2015, she was arrested by police. She lodged a non-refoulement claim on 14 August 2015 on the basis that, if refouled, she will be harmed or killed by the people of an Indian-owned lending company (“the company”).

5.According to the applicant, she and her husband were domestic helper in Hong Kong. However, her husband had stroke attacks and he had to return to the Philippines. In 2009, she had to borrow money from the company for her husband’s medical expenses. In 2012, her husband passed away. She was unable to repay her loans. The company had sent 4 people to her house to demand payment of the loans. They had hit the head of her son and her father with rifle butt whilst she was in Hong Kong in 2012. She is suffering from depression and stress. She is afraid that the creditor company will harm her if she returns to the Philippines. She did not report the matter to police in the Philippines. She does not think the police will protect her and she has nowhere to relocate.

The Director’s Decisions

6.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”).

7.By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that: (i) the absence or low intensity and frequency of past ill-treatment is indicative of a small risk of harm upon her return to her country; (ii) state protection will be available to her; and (iii) internal relocation is viable. [13]-[19]

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 14 December 2018, the Board conducted an oral hearing.

9.Having considered the applicant’s evidence, the Board found that the applicant does not have a real risk of being subjected to any of the applicable risks. [72]-[83]. The Board had also found that internal relocation is viable for the applicant. [76]

10.For the above reasons, the Board dismissed the applicant’s 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 14 October 2019 for leave to apply for judicial review of the Board’s Decision.

12.The applicant has not filed any affidavit in support of her application.

DISCUSSION

13.As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of the applicant’s case.

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 Decision 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.The applicant has failed to raise any valid ground to challenge the Board’s Decision.

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

DISPOSITION

19.I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

The applicant was unrepresented.