MACEDA ROSE CODOD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2568/2019

[2025] HKCFI 1046

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2568 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 Decision dated 12 August 2019 of the Torture Claims Appeal Board (“the Board’s Decision).

2.  The applicant requested an oral hearing. She appeared before the Court on 3 March 2025.

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 41, is a national of the Philippines. She came to Hong Kong to work as a domestic helper on 3 March 2011. However, she changed her status as a visitor to stay in Hong Kong. She overstayed since 29 June 2011. She lodged a non-refoulement claim by way of written significations. She claimed that, if refouled, she will be harmed or killed by the creditor because she was unable to repay the loan.

5.  According to the applicant, she made investment in second-hand garment store with her partner, Percilyn in around December 2010. For this purpose, she borrowed half of a million Filipino pesos from a loan shark. Her partner misappropriated the money and disappeared. She was unable to repay the loan. The loan shark threatened to kill her. She therefore came to Hong Kong.

The Director’s Decisions

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 Notice of Decision dated 3 August 2016 (“the Director’s 1^st Decision”) and Notice of Further Decision dated 18 August 2017 (“the Director’s 2^nd Decision”), the Director rejected the applicant’s claim on all the applicable risks above. The Director’s 1^st Decision dealt with Torture risk, BOR 3 risk and Persecution risk. The Director’s 2^nd Decision dealt with BOR 2 risk. The Director’s 1^st and 2^nd Decisions are collectively called “the Director’s Decisions”.

The Board’s Decision

8.  The applicant appealed the Director’s Decisions to the Board. On 28 June 2019, the Board conducted an oral hearing for her.

9.  Having considered the applicant’s evidence, the Board came to the conclusion that the applicant’s evidence did not support any of the applicable risks. See paragraphs 42-49. Furthermore, it held that internal relocation is viable if she returns to her country.[51]-[52]

10.  For the above reasons, the Board dismissed her appeal.

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

11.  The applicant has filed Form 86 dated 3 September 2019 for leave to apply for judicial review of the Board’s Decision.

12.  The applicant has, insofar as the Board is concerned, raised the ground that it had reached a wrong decision and the Board’s Decision is unreasonable without paying attention to BOR 2 risk.

DISCUSSION

13.  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).

14.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, she said that the Board was not wrong.

15.  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.”

16.  In my view, the Board was entitled to come to its views above.

17.  The applicant has raised no valid ground to challenge the Board’s Decision.

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

DISPOSITION

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