Elvira Daluyan Cario Alias Dolores Gamongan Malao v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2867/2019

[2025] HKCFI 1620

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2867 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 23 September 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”), and the Director’s Decision dated 11 September 2018. The Director’s Decision has been superseded by the Board’s Decision. Therefore, the Director’s Decision, the Non-refoulement claim form and the record of screening interview as set out in Form 86, which are not amenable to judicial review, are dismissed in limine.

2.The applicant requested an oral hearing. However, she was absent at the hearing on 7 April 2025. I shall deal with her application on 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 is a national of the Philippines. She was under a deportation order issued on 18 January 2010. She was arrested on 25 July 2016 for contravention of the deportation order. She was convicted and sentenced. She lodged her non-refoulement claim on 19 December 2016. Her claim is on the basis that, if refouled, she will be harmed or killed by her husband for family dispute, the details of which she refused to disclose.

5.According to the applicant, her husband was a drug and alcohol addict. As from 1999, her husband assaulted her over small things such as she was unable to answer his questions. He hit her with bare hands. In 2010, he stabbed her with a kitchen knife. She was admitted to hospital and it took around one week to recover. Since that incident, she moved to live in her father’s house and had never been in touch with her husband. Details of her story are set out in paragraph 7 of the Notice of Decision dated 11 September 2018 (“the Director’s Decision”).

The Director’s Decision

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) there were no substantial grounds for believing that she would be in danger of being harmed by her husband upon her return to the Philippines; (ii) state protection would be available to her; and (iii) internal relocation would be viable. [14]-27].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 27 February 2019, the Board conducted an oral hearing for her with an interpreter. However, the applicant did not wish to give oral evidence and she did not call any witness to give evidence at the hearing. [7] However, the Board had asked her some questions.

9.Having considered the applicant’s evidence, the Board came to the conclusion that (i) her account of events was credible [29]; (ii) the level of injury she sustained did not meet the minimum level of severity [30]; (iii) state protection would be available to her [37]; and (iv) internal relocation would be viable [39]-[40].

10.For the above reasons, the Board dismissed her appeal.

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

11.The applicant has filed Form 86 dated 30 September 2019 for leave to apply for judicial review of the Board’s Decision.

12.The applicant has raised the grounds, which are summarized as follows:

(1)  she was not given any language assistance for her preparation of the Board’s hearing and therefore she did not give oral evidence, and for the Board’s Decision, which she did not understand;

(2)  the Director and the Board had wrongfully exercised their case management power in determining that her case had no substance;

(3)  she should be considered as a member of a particular social group, namely, women from an abusive behaviour; and

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

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.

15.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.”

16.The applicant’s reasons under paragraph 12 do not assist her. Ground (1) fails as the Court of Appeal had held that lack of translation service or interpretation is not a valid ground to challenge the Board’s Decision[1]. Grounds (2) to (4) are her bare assertions or opinions without any evidence or legal authority in support. They are not valid to challenge the Board’s Decision.

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

DISPOSITION

18.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.