AGUINALDO JOSEPHINE PARANGAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 522/2024

[2024] HKCFI 1731

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 522 of 2024

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.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 8 March 2024 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.  The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High 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 46, is a Filipino. She last arrived in Hong Kong on 11 August 2018 to work as a foreign domestic helper. Her contract was pre-maturely terminated on 24 June 2019 and she overstayed since 9 July 2019. The applicant surrendered to the Immigration Department on 16 August 2019. She lodged a non-refoulement claim on 26 August 2019 and 20 February 2020, after which she became uncontactable on both occasions. On 1 August 2023, the applicant was arrested by the police and she made a non-refoulement claim on 20 October 2023. The claim was made on the basis that, if refouled, she would be harmed or killed by (i) her husband because of her relationships and pregnancies with other men and (ii) her siblings because they blamed her for causing their father’s death because of her ex-marital relationship, giving birth to her children.

5.  According to the applicant, after her husband found out that she gave birth to a daughter in Hong Kong with her previous partner in around 2008, he threatened to kill her through Facebook messenger. The applicant therefore immediately deleted her Facebook account. Subsequently, she was informed by her younger sister that her husband had made frequent visits to her home enquiring her whereabouts and threatening to do something bad when she returned to the Philippines.

6.  When the applicant went back to the Philippines in around 2018 to visit her ill father, her family was upset with her because she got pregnant with another baby with her current partner. Meanwhile, her husband also called her family and threatened to kill her even though he was working abroad at the material time. Shortly after the applicant returned to Hong Kong in August 2018, her father passed away. Her siblings blamed her for her father’s death because of the stress and trouble she gave to the family. Meanwhile, the applicant also learnt that her husband had returned to the Philippines and was searching for her.

7.  The applicant gave birth to a son on 25 January 2019 and her daughter shared the news by posting a picture on Facebook, to which the applicant’s husband responded with a “?”. Feeling scared with the response from her husband, the applicant asked her daughter to delete her Facebook account. Thereafter, the applicant was informed that her husband constantly visited her house and disturbed her sister, especially when he was drunk. The applicant last contacted her sister in around 2021 and she was informed that her husband was still looking for her.

8.  Regarding the issues with her siblings, the applicant added that she had a land dispute with her elder brother. He forced her to sign documents so that he could sell the land inherited from their parents.

9.  The applicant did not report the matter to the police because she thought it was a personal matter. She also considered internal relocation not viable because she believed that her husband would be able to locate her wherever she hid.

10.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 14 December 2023 (“the Director’s Decision”).

The Director’s Decision

11.  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 Decision, the Director dismissed the applicant’s claim. The Director found that there was no evidence showing that her husband or siblings had a real and strong intention to seriously harm or kill her, so that the risk of harm was not as imminent as claimed. Furthermore, the applicant’s behaviour of not seeking assistance at the earliest opportunity was also inconsistent with that of someone genuinely in fear [15] - [18].

11.  In any event, (i) state protection would be available to her upon her return [21] - [27]; (ii) internal relocation would be viable [28] - [30] and (iii) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [31] - [36], Persecution risk [37] - [42] or Torture risk [43] - [45].

The Board’s Decision

12.  The applicant appealed the Director’s Decision to the Board. On 15 February 2024, the Board conducted an oral hearing.

13.  The Board accepted that the applicant had two children born out of wedlock [67]. However, it did not accept that her husband threatened her through Facebook messenger in 2008 [69] - [70]. The applicant’s claim at the hearing that her husband had physically harmed her twice was also found not credible [71] - [72]. Furthermore, the Board did not accept that her husband enquired her whereabouts and threatened to kill her through her family [74] - [77]. Regarding her husband’s response to her daughter’s Facebook post, the Board were of the view that the “?” did not represent any threat and that her husband did not take any adverse action against the applicant and her family after the “?” incident [79] - [81]. In any event, taking the applicant’s case to the highest, the extent of harm by her husband could not be regarded as reaching the requisite level of severity [82] - [83] and that she had since 2008 effectively cut ties with her husband, who did not seem to be interested in pursuing her according to the evidence [84], [87].

14.  As for the claimed fear from the applicant’s elder brother, given that he simply wanted her to sign documents to facilitate his sale of the land, the Board considered that the risk of harm was not real and not foreseeable [89].

15.  Based on such findings and in light of the country of origin information indicating the availability of state protection [37] - [54] and internal relocation [136] - [140], 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 [99] - [135]. 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

16.  The applicant has filed Form 86 dated 27 March 2024 for leave to apply for judicial review of the Board’s Decision.

17.  In her affirmation in support of her application, the applicant says that she wants to stay in Hong Kong and her life will be in danger if she returns to her country.

DISCUSSION

18.  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).

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

20.  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.”

21.  For the reasons above, the Board concluded that she would not be subjected to harm or to be killed by her husband or her siblings. The applicant has not been able to raise any valid reason to challenge the Board’s finding of the facts.

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

CONCLUSION

23.  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