Dagnal Marlyn Placido v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3072/2019

[2025] HKCFI 2381

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 3072 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 9 October 2019 of the Torture Claims Appeal Board (“the Board’s Decision).

2.The applicant requested an oral hearing. She appeared before the Court on 16 May 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 is a national of Philippines. The applicant arrived in Hong Kong and was permitted to remain as a visitor. She overstayed since 29 November 2014. The applicant was arrested on 13 April 2015 and in due course, lodged her non-refoulement claim.

5.The applicant’s claim was based on his fear of being harmed or killed by the wife of the applicant’s boyfriend as she had an affair with her husband.

6.According to the applicant, she received threats on or around early January 2014 by telephone telling her that her life was cheap. On or around June 2014, her guard dog was poisoned and died. As the applicant had a cousin in Hong Kong, she left her family to Hong Kong. Details of his claim are set out at paragraph 7 of the Notice of Decision dated 19 December 2018 by the Director (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 assessed the applicant’s claim and dismissed her claim. In summary, the Director found that the claimed level of risk of harm was assessed to be low as the acts did not show any real intention to kill the applicant, and there were no substantial basis of fear that she would be subjected to any serious harm or ill-treatment [14]; that state protection was available [15-18]; and that internal relocation alternatives were available and reasonable [19-21].

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board. On 30 April 2019, the Board conducted an oral hearing for her with an interpreter.

10.Having considered the evidence, the Board found that the applicant had given an overall consistent account in relation to her affair and the threats, but was not satisfied that the applicant was ever subjected to death threats or had a genuine subjective fear for her life [56]. Furthermore, the Board gave weight to the delay in the applicant making her claim for non-refoulement protection [63]. In any event, the applicant had not at any stage sought state protection [61]. In conclusion, the Board held that the applicant’s claim failed under all applicable grounds. It therefore dismissed his 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 17 October 2019 for leave to apply for judicial review of the Board’s Decision.

12.In the applicant’s affidavit in support of his application, she exhibited her hearing bundle and deposed that she would like to appeal and review and to reject the Director’s Decision because they disregarded her dangerous situation. Again, she did not put forward any valid grounds.

13.On 3 May 2023, the applicant submitted a 3-page “Written Submission” which can be summarised as follows: she disagreed with the Director’s and Board’s Decision as she did not think the case was determined fairly; the decision was procedurally unfair; she was not provided with proper legal and/or language assistance; and the Board was in breach of procedural fairness.

DISCUSSION

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 Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that the Board was not wrong in its decision. In view of her submissions, those grounds under paragraphs 12 and 13 are inconsistent with her submissions have become irrelevant.

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 raised no valid ground to challenge the Board’s Decision.

18.The applicant 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 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.