PASCUA JANICE ALCARAZ v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1347/2019

[2023] HKCFI 2910

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1347 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being present in open court;

Leave to apply for Judicial Review be refused.

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 23 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant requested an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), a hearing was fixed for her and she attended the Court on 31 May 2023.

The applicant

3.  The applicant is a national of the Philippines. She had been a foreign domestic helper in Hong Kong since May 2007. She last entered Hong Kong on 10 January 2010 as a visitor and was permitted to stay until 24 January 2010. Her stay was later extended to 13 February 2010. However, she did not depart and had overstayed since 14 February 2010. On 20 September 2017, she surrendered to the Immigration Department. On 9 and 26 October 2017, she lodged a non-refoulement claim. Her claim was made on the basis that, if refouled, she would be kidnapped, tortured, raped or even killed by her husband’s brothers.

4.  The applicant claimed that her mother was elected as the Barangay Captain in the council of Caluangan Barangay for the party Lakas-CMD in 1994. In 2003, the applicant was pregnant with a guy whose father belonged to the rival party Liberal Party in the same area. After the marriage, the applicant lived with her husband and his family. He had five brothers, who threatened the applicant, demanding her to tell her mother to step down from the position. The applicant stated that her husband’s five brothers often attempted to rape her and one succeeded. In fact, the biological father of the applicant’s son was suspected to be her husband’s second eldest brother. The applicant told her husband about the harassments and the rape. Yet, her husband remained silence about these matters. As a result, the applicant came to Hong Kong for the first time. Meanwhile, her husband had been demanding money from her and her mother and her father in law had been in conflict over the Captain position.

5.  On 11 December 2009, the applicant returned to the Philippines. At that time, the applicant’s husband wanted to have sexual relationship with her but she refused. Thereafter, the applicant departed for Hong Kong for a second time. As the harassments from the husband’s family continued, the applicant decided to seek protection in Hong Kong. Details of her claim are set out at paragraph 6 of the Notice of Decision dated 29 October 2018 by the Director (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. In elaboration, the Director found that (i) the claimed risk of harm was assessed to be low [12]; (ii) state protection would be available to her [13]; and (iii) internal relocation was a viable option [14].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board. On 25 February 2019, the Board conducted an oral hearing for her appeal, during which she gave oral testimonies with the assistance of an interpreter qualified in the Tagalog and English languages [16].

9.  The Board recapped her claim and oral evidence at the hearing [5]-[30]. Having considered the claim, the Board accepted the applicant’s accounts on the past events [38]. In particular, the Board accepted the applicant’s evidence on her family background, the position of her mother, her husband’s family background, the conflicts between the families, and the harassments from the husband’s brothers [39]-[49]. In these premises, the Board proceeded to evaluable her claim under the individual grounds.

10.  The Board first considered that the applicant’s claim did not come within the definition of “torture” as the harm was not inflicted by, or at the instigation of a public official or personal acting in an official capacity since her husband and his brothers were private individuals and she could seek protection from the State [57]-[63]. As a result, the Board found that the applicant’s claim on the ground of Torture risk failed [64]. Secondly, while the Board accepted that there might be mistreatments upon her refoulement from her husband and his brothers, she could negate the risk of harm by relocating to cities like Manila or Cebu [72]-[74]. Her claim on the ground of BOR3 risk also failed [75]. In light of the availability of state protection and internal relocation [81]-[84], the Board also rejected the applicant’s claim on the remaining grounds.

11.  Therefore, the applicant’s appeal was dismissed.

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

12.  The applicant has filed Form 86 dated 20 May 2019 for leave to apply for judicial review of the Board’s Decision.

13.  The applicant has raised the ground below in support of her application.

(1)  The Board had unlawfully fettered its discretion by refusing his appeal on the grounds that it did not satisfy the requirement.

(2)  The adjudicator acted in a procedurally unfair manner in dealing with his appeal.

(3)  The Board’s Decision was unreasonable or irrational in the public law sense, or is a result of procedural errors or unfairness.

(4)  The Board failed to meet the greater care and duty owed to a self-represented claimant.

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 its 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 confirmed that she understood the Board’s Decision and she was free to state her case before the Board. She further said that she wanted more time to produce proof of her case. But she did not say what documents she intended to produce.

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.  For the reasons given by the Board in paragraph 10, the Board, though accepted the facts as claimed, nevertheless found that the applicant was unable to prove that she will be subject to real risks under the Convention and the statutory provisions of the Ordinance if she returns to the Philippines and she has state protection and internal relocation alternative to alleviate her risks.

18.  Those grounds in paragraph 13, supra are general assertions or propositions of the law. The Court of Appeal in Salim Ahmed alias MD Salim [2020] HKCA 244 held:

“20. … … general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case: Re Mizan Sikder [2019] HKCA 20 and Ibrahim v Simon Russell [2019] HKCA 1327.” See also Re Haider Khalil [2021] HKCA 223 [16].”

19.  The applicant has raised no valid ground to challenge the Board’s Decision. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

20.  The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.

CONCLUSION

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

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1