RODRIGUEZ RHODA FERRER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1486/2019

[2024] HKCFI 1451

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1486 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 absent 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 17 May 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), 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 50, is a Filipino. She arrived in Hong Kong as a visitor on 1 February 2013 and she overstayed since 16 February 2013. She was arrested by the police on 22 December 2016 and was sentenced to imprisonment on 24 December 2016. On 20 and 24 February 2017, the applicant made a non-refoulement claim. The claim was made on the basis that, if refouled, she would be harmed or killed by her creditor (“the loan shark”) because of a loan dispute.

5.  According to the applicant, her cohabitee fell ill with kidney stones and heart disease towards the end of 2011. She was in need of money urgently for his medication and therefore took out a loan from the loan shark, who was also her ex-employer. The applicant and her cohabitee had a land farming for rice and they thought they would be able to repay once the crops were harvested. Yet, it turned out that the harvest was not good and the applicant therefore was unable to repay the loan.

6.  During May and June 2012, the loan shark came to the applicant’s house five time demanding repayment. Since she was unable to pay, the loan shark suggested the applicant to sell Shabu (“ice”) for him. The applicant was reluctant to do so, which made the loan shark very angry. He pulled her and shouted at her twice in front of her children. He also threatened to kill her and that he would hire someone to rape her if she failed to pay. The applicant was so frightened about the threats and hid herself in her parents’ home from July 2012 to January 2013. She did not report the matter to the police because they had a good relationship with the loan shark and would not take any action against him.

7.  During her stay in her parents’ home, the loan shark went to her house and pressed her children to ask her for repayment. Her children felt disturbed and later relocated to the house of her mother-in-law.

8.  In or around November/December 2012, the applicant met a friend on Facebook who suggested her to work as a domestic helper in Hong Kong. As she wished to earn more money to repay her loan, she followed the advice of her friend. Yet, she lost contact with her friend as soon as she arrived in Hong Kong. She overstayed and was subsequently arrested.

9.  The applicant’s cohabitee died in May 2013. She was informed by her son that the loan shark was still after her.

10.  The applicant considered internal relocation within the Philippines not viable because all her relatives resided in her hometown and she had no money to resettle in other places. Her siblings were barely self-sufficient and she was afraid that she would be located by the loan shark if she returned to the locality. As for state protection, she had no idea on channels that offered assistance in the Philippines.

11.  Details of the applicant’s story can be found in paragraph 7 of the Director’s Decision dated 27 August 2018 (“the Director’s Decision”).

The Director’s Decision

12.  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”).

13.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director was of the view that (i) the low intensity and frequency of past ill-treatment from the loan shark indicated a small future risk of harm upon her return to the Philippines [16]; (ii) her procrastination in seeking non-refoulement protection reflected that her perceived harm from the loan shark was not as imminent and substantial as claimed [18]; (iii) state protection will be available to her upon her return [19]-[25]; (iv) internal relocation is viable [17], [26]-[27] and (v) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [28]-[33], Persecution risk [34]-[38] or Torture risk [39]-[41].

The Board’s Decision

14.  The applicant appealed the Director’s Decision to the Board. On 7 March 2019, the Board conducted an oral hearing.

15.  During the hearing, the applicant told the Board that her adult children were not engaged in paid work, but rather they worked for the applicant’s in-laws on the farm, in which they were only paid during harvest and given some rice [24]-[28]. She reiterated that the reason for coming to Hong Kong was to earn more money to pay off her loan as advised by her Facebook friend, but she could no longer find her friend after arrival in Hong Kong [29]-[31]. In addition, no documentary evidence relevant to the loan could be provided [33]-[34], [39]-[40]. Meanwhile, the applicant gave inconsistent evidence in relation to (i) whether she repaid part of the loan [35]-[38], (ii) its repayment terms [42]-[44] and (iii) her earnings while working as a gambling assistant for the loan shark [45]-[47]. Furthermore, she explained why she borrowed money from the loan shark instead of from her siblings or the bank [48]-[49]. She also told the Board that the last time the loan shark came demanding money at her home was in July 2013 [53]-[55].

16.  Having considered the applicant’s evidence, the Board was of the view that she was not a witness of truth due to the abovementioned significant inconsistencies in her evidence [65]-[66], [74]. It also found it difficult to believe that she had no documentary evidence relevant to the loan [64], [67]-[68]. Moreover, the Board was surprised that her adult children did not look for paid work to help her repay the loan and had doubts in regard to her explanation for not borrowing money from her siblings or the bank instead [70]-[72]. Her claim that that she came to Hong Kong following the advice from her Facebook friend was also vague without supporting evidence [73].

17.  Based on such findings, the Board did not accept (i) the existence of the loan from the loan shark; (ii) default of the loan and (iii) threats posed by the loan shark as a result of non-repayment. As such, the applicant should not be at risk of any harm if she returned to the Philippines [84]-[86]. In any event, relocation was feasible taking into account the country of origin information [81]-[83].

18.  The Board concluded that the applicant’s case failed to meet any of the requirements under Torture risk [87]-[93], BOR 2 and BOR 3 risk [94]-[103] or Persecution risk [104]-[108]. 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

19.  The applicant has filed Form 86 dated 31 May 2019 for leave to apply for judicial review of the Board’s Decision.

20.  In her affidavit in support of her application, the applicant did not raise any specific ground.

DISCUSSION

21.  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).

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

23.  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.”

24.  For those reasons given by the Board above, the Board refused to accept the applicant’s evidence on the facts in support of her claim. The applicant has raised no valid reason to challenge the Board’s Decision. The Board was entitled to form its views and make its conclusion based upon the evidence before it.

25.  There is simply no reason for this Court to interfere with the Board’s Decision.

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

CONCLUSION

27.  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