AGRA IRENE SATURNO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2000/2019

[2024] HKCFI 2554

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2000 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 4 July 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant requested an oral hearing. However, she was absent at the hearing on 4 September 2024 without prior notice to the Court. 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 44, is a Filipino. She last arrived in Hong Kong to work as a foreign domestic helper (“FDH”)  on 2 April 2014. Her employment contract was prematurely terminated on 10 October 2015 and she overstayed since 25 October 2015. The applicant was arrested by the police on 12 November 2015 and she made a non-refoulement claim on 19 November 2015 and 25 January 2018. The claim was made on the basis that, if refouled, she would be seriously harmed or even killed by her husband.

5.  According to the applicant, her husband began abusing her when they started co-habiting in 1997/1998, particularly when he was drunk or lost in gambling.  In May 1999, the applicant gave birth to a son for her husband and they got married in 2000. After the marriage, her husband’s abusive behaviour towards her became worse as he had pointed a gun and a knife at her. There was also an occasion when the applicant’s husband turned on the engine of his motorcycle in the house, causing the smoke emitted by the engine to fill the house.

6.  The applicant gave birth to her daughter on 25 July 2002 and she started working as a FDH in Taiwan in January 2003. When the applicant returned to the Philippines in 2006, her husband continued his abusive behaviour towards her. In 2007, the applicant came to Hong Kong to work as a FDH. She maintained contact with her mother, who informed her that her husband had traumatised her son with firecrackers and had pointed a gun at her. Although the matters were reported to the Barangay Chief, no effective measures were taken.

7.  The applicant subsequently learnt about her husband’s relationship with her brother’s wife. When she returned to the Philippines in 2009 and 2010, she stayed in her mother’s house and did not live with her husband. Since 2013, the applicant had no further contact with her husband. She heard from her mother that her husband had moved back to his hometown. However, he would return to visit his children and would also ask for the whereabouts of the applicant.

8.  The applicant had never sought help from the police because she did not want to bring embarrassment to her family. She also considered internal relocation not viable because she believed that her husband would eventually find her through words of mouth.

9.  Details of the story of the applicant can be found in paragraph 8 of the Director’s Decision dated 21 November 2018 (“the Director’s Decision”).

The Director’s Decisions

10.  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”); and

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”).

d.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”)  (“Torture risk”).

11.  By way of the Director’s Decision, the Director dismissed the applicant’s claims. The Director found that: (i)  the absence or low intensity and frequency of past ill-treatment from her husband indicated a small and low future risk of harm upon her return to the Philippines [13.2]; (ii)  the applicant’s delay in seeking non-refoulement protection was inconsistent with her claimed fear of harm [13.3]; (iii)  state protection would be available [14]; (iv)  internal relocation would be viable [15] and (v)  the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [17]-[22], Persecution risk [23]-[28] or Torture risk [29]-[31].

The Board’s Decision

12.  The applicant appealed the Director’s Decision to the Board.  On 17 May 2019, the Board conducted an oral hearing.  

13.  The Board found the applicant’s husband was merely a nuisance to the people whom he was close and related, but had no national influence which the applicant should fear [28]-[30]. The Board further found that internal relocation was viable [27]. The Board formed the view that the present case was a classic case of domestic violence. Given that the applicant had physically separated from her husband since 2007, there should be no chance for them to live together again as husband and wife, so that the applicant’s fear against her husband was not well-founded. There was no proper ground that she would face substantial risk upon return to the Philippines [31]-[38]. 

14.  Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Persecution risk, BOR 2 and BOR 3 risk or Torture risk [42]-[61]. The applicant’s appeal was therefore dismissed and the Director’s Decision was confirmed.

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

15.  The applicant has filed Form 86 dated 15 July 2019 for leave to apply for judicial review of the Board’s Decision.

16.  In the affidavit in support of her application, the applicant said that the Board was unreasonable because it failed to consider all the matters raised in her claim and failed to give adequate reasons for its decisions.

DISCUSSION

17.  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).

18.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

19.  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.”

20.  From the Board’s Decision, the adjudicator had considered the applicant’s evidence on the facts of her case. It came to the views as per paragraph 31-38 of the Board’s Decision. There is nothing amiss about the Board’s views on the evidence.

21.  The applicant’s grounds in support of her application under paragraph 16 are her bare assertions without any evidence in support. In my view, the Board has given sufficient reasons in support of its decisions. Furthermore, the Board finds that internal relocation is viable if she returns to the Philippines [27].

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

DISPOSITION

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