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HCAL 242/2024
[2024] HKCFI 1166
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 242 of 2024
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BETWEEN
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Sagao Leah Reynon |
Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge K.W. Lung:
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 30 November 2023 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”), she appeared before the Court on 10 April 2024.
The applicant
3. The applicant, aged 46, is a Filipino. She arrived in Hong Kong to work as a foreign domestic helper on 6 September 2019. Her employment contract was prematurely terminated on 15 January 2020 and she overstayed since 30 January 2020. The applicant was arrested by the police on 20 February 2023 for overstaying and she made a non-refoulement claim on 26 February 2023. The claim was made on the basis that, if refouled, she would be harmed or killed by her two creditors (“the creditors”) because she failed to repay the loan.
4. According to the applicant, her father had kidney stones and her mother was diagnosed with breast cancer in 2019. She was therefore in need of money for her parents’ medical treatment. Subsequently, the applicant managed to secure employment to work as a foreign domestic helper in Hong Kong. Before she left for Hong Kong, she took out a loan from the creditors to pay for her agency fees and her parents’ medical treatment.
5. The applicant made repayment to the creditors every month after she started her employment in Hong Kong. Yet, she was unable to do so after termination of her employment contract on 15 January 2020. Since then, the creditors started looking for her at her house in the Philippines. They verbally abused the applicant’s family and threatened to kill the applicant upon her return to the Philippines if she failed to repay the loan. The applicant’s cousin reported the creditors’ threats to the police, but they refused to take any action, as they regarded it a private matter.
6. The applicant last contacted her family on 15 February 2023 and was informed that the creditors were still looking for her at her house and threatening to kill her.
7. The applicant considered internal relocation not viable because she did not have the money or connection for staying elsewhere within the Philippines. She was also of the view that the police would regard the matter as a private dispute and would not assist in light of her cousin’s experience.
8. Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 24 April 2023 (“the Director’s Decision”).
The Director’s Decision
9. 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”).
10. By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director was of the view that (i) the threats from the creditors were not as imminent as claimed [12] - [16]; (ii) state protection will be available to her upon her return [17] - [20]; (iii) internal relocation is viable [21] and (iv) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [22] - [27], Persecution risk [28] - [32] or Torture risk [33] - [37].
The Board’s Decision
11. The applicant appealed the Director’s Decision to the Board. On 30 August 2023, the Board conducted an oral hearing.
12. At the beginning of the hearing, the applicant told the Board that her mother had forwarded her two demand letters from the creditors’ lawyers. She did not have the letters with her, but she told the Board that the letters contained no threats apart from stating that legal action would be taken if she failed to repay the loan. Despite the absence of the demand letters, the Board accepted that the applicant had taken out loans from the creditors and that she was given notice that legal action would be commenced if she failed to repay the loan [40].
13. The applicant also provided more information on the background of the creditors during the hearing. However, the Board was of the view that the allegations against one of the creditors were merely hearsay and unreliable [42] - [45]. Regarding the threats posed by the creditors, the Board considered that they were just verbal expressions of frustration and demand for loan repayments, without any intention to be carried out [46] - [47]. In any event, the applicant’s delay in seeking protection was inconsistent with the behaviour of a person genuinely in fear [50].
14. Based on such findings, the Board concluded that the applicant’s claimed risk of being harmed or killed was low and unreal, and it was also unlikely that her claimed fear would materialize [52]. As such, the applicant’s case failed to meet any of the requirements under Torture risk [15] - [18], [53] - [54], BOR 2 and BOR 3 risk [19] - [28], [56] or Persecution risk [29] - [30], [57]. Furthermore, internal relocation was viable [48] - [49], [58] - [60] and there was also insufficient evidence to show that there was lack of state protection [55].
15. 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 29 January 2024 for leave to apply for judicial review of the Board’s Decision.
17. In support of her application, the applicant had submitted a written submissions and a letter to say that she had borrowed money in order to save her mother’s life and she has no regret for it. In the letter, she further said that what said are true and she is unable to obtain documentary evidence. But 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. Before me, the applicant said the Board was wrong for not believing her evidence.
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. Those reasons that the applicant raised in the written submissions and her letter are not valid to challenge the Board’s Decision. The Board accepted that she had borrowed money from the creditors. But the creditors had sent her demand letter prepared by their lawyer, which means that her creditors are adopting the lawful means to demand repayment from her. She has not real risk of harm from her creditors. The Board was entitled to form this view.
22. The applicant 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.
Dated the 14th day of May 2024
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(M.O. WONG)(Ms)
for Registrar, High Court
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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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 14/5/2024
Sagao Leah Reynon
Applicant’s ref. no:
Nil |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 14/5/2024
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 21741
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 292/23 (formerly RBCZ-5000229-23)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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