SARITA EMELIA BEJIK v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2373/2019

[2025] HKCFI 117

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2373 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 Notice of Further Decision by the Director of Immigration dated 6 April 2017 on BOR 2 risk (“the Director’s 2^nd Decision”), which was superseded by the Torture Claims Appeal Board/Non-refoulement Claims Petition Office’s Decision dated 6 August 2019 (“the Board’s 2^nd Decision”) dismissing her appeal against the Director’s 2^nd Decision.

2.  The applicant’s claim on the Torture risk, BOR 3 risk and Persecution risk was dismissed by the Director’s Notice of Decision dated 11 March 2015 (“the Director’s 1^st Decision”); and on appeal, they were dismissed by the Board by Board’s Decision dated 15 June 2016 (“the Board’s 1^st Decision). Since the applicant’s claim on all the applicable risks arose out of the same set of facts, the Board’s 1^st and 2^nd Decisions, collectively called (“the Board’s Decisions”), will be considered together in this application.

3.  The applicant asked for a hearing. However, she was absent at the hearing on 11 December 2024. I shall deal with her application on the papers.

4.  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, the Director of Immigration is the interested party, and the decisions in respect of which relief is sought are the Board’s Decisions.

The applicant

5.  The applicant, aged 54, is a Filipino. She last arrived in Hong Kong on 24 February 2013 to work as a foreign domestic helper (“FDH”). Her employment contract was prematurely terminated on 15 June 2013 and she had overstayed since 30 June 2013. The applicant was arrested by the police on 7 December 2013 and she made a torture claim on 9 January 2014. The claim was made on the basis that, if refouled, she would be seriously harmed or even killed by her husband. Upon the commencement of the unified screening mechanism, the applicant’s torture claim had been taken to be a non-refoulement claim and was assessed on all applicable grounds.

6.  According to the applicant, she had been suffering domestic violence from her husband since their marriage in 1992. Subsequently, the applicant went to work as FDH, but such abuse resumed when she returned home during the breaks in between her contracts. On 13 February 2010, the applicant complained her husband’s behaviour to the barangay council and the barangay captain requested her husband to sign a note promising not to hit the applicant anymore. Thereafter, the applicant returned home and stayed with her husband for a week. Although nothing eventful happened, she worried that such situation would not last long. The applicant therefore relocated to Manila and eventually returned to Hong Kong to work as a FDH on 29 April 2010.

7.  The applicant had never sought any assistance from the police because she believed that they would simply refer the case back to the barangay. She also considered internal relocation not viable because she did not want to separate with her children, who were attending school and could not move elsewhere.

8.  Details of the story of the applicant can be found in paragraph 6 of the Director’s Decision dated 11 March 2015 (“the Director’s 1^st Decision”).

The Director’s Decisions

9.  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”);

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”); and

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

10.  By way of the Director’s 1^st Decision, the Director dismissed the applicant’s claim on BOR 3 risk, Persecution risk and Torture risk. The Director found that: (i) the matter concerned was a private dispute and the applicant’s evidence also indicated that assistance could be sought from the barangay council [15.1]; (ii) the conduct of her husband showed that he had no real intention to seriously harm or kill her [15.2]; (iii) the applicant’s decision to continue staying with her husband and her delay in applying for non-refoulement protection was inconsistent with the behaviour of someone genuinely in fear [15.3]; (iv) the supporting documents could not further advance her claim [16]; (v) state protection would be available and there were also alternate avenues to provide the necessary assistance [17]-[21] and (vi) internal relocation would be viable [22]-[26].

11.  In the Notice of Further Decision dated 6 April 2017, the Director also rejected the applicant’s claim on BOR 2 risk (“the Director’s 2^nd Decision”) for the reason that there was no evidence to show that her right to life under BOR 2 would be violated upon her return.

The Board’s Decisions

12.  The applicant appealed the Director’s 1^st Decision to the Board. The Board considered that the appeal could be justly determined without a hearing because there was no issue that needed clarification [16]. The appeal was therefore proceeded on such basis.

13.  The Board found the problems the applicant had with her husband was nothing more than a domestic matrimonial dispute with no evidence of state involvement. The applicant’s decision to stay with her husband and her delay in seeking non-refoulement protection was also inconsistent with the behaviour of someone genuinely in fear. Based on such findings, the Board rejected the applicant’s claim on Torture risk, BOR 3 risk and Persecution risk [17]-[29]. In any event, state protection and internal relocation would also be available [30].

14.  The Board therefore dismissed the applicant’s appeal and confirmed the Director’s 1^st Decision (“the Board’s 1^st Decision”).

15.  The applicant also appealed the Director’s 2^nd Decision to the Board. The Board considered that the appeal could be justly determined without a hearing because there was no issue that needed clarification [12]. The appeal was therefore proceeded on such basis.

16.  The applicant claimed in her Notice of Appeal/Petition (“NOA”) that she still feared harm from her husband and that he had even joined a rebel group called New People’s Army [11]. The Board found the applicant’s NOA was based on bare assertions without any evidential support. In any event, there was no evidence indicating that the applicant’s right to life would be at risk upon return to the Philippines. With this coupled with the availability of state protection and internal relocation, the Board rejected the applicant’s claim on BOR 2 risk [14]- [19].

17.  The applicant’s appeal was therefore dismissed and the Director’s 2^nd Decision was confirmed (“the Board’s 2^nd Decision”).

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

18.  The applicant has filed Form 86 on 15 August 2019 for leave to apply for judicial review of the Board’s Decisions.

19.  In her affidavit in support of her application, the applicant did not raise any specific ground to challenge the Board’s Decisions.

DISCUSSION

20.  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).

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

22.  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.”

23.  The applicant has raised no valid ground to challenge the Board’s Decisions. There is no reason for the Court to interfere with the Board’s Decisions.

24.  The applicant fails to show that she has any realistic prospect of success in her intended judicial review of the Board’s Decisions.

DISPOSITION

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