DENOSTA SHERYL CASTRO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1241/2019

[2024] HKCFI 342

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1241 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 24 April 2019 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 and the date of the Board’s Decision be 24 April 2019 instead of 16 January 2018.

The applicant

4.  The applicant is a national of the Philippines.  She last entered Hong Kong as a foreign domestic helper on 23 May 2016 and was permitted to remain until 26 June 2017 or two weeks after the termination of the employment contract, whichever was earlier.  On 18 September 2016, her employment contract was prematurely terminated.  She was only allowed to stay until 2 October 2016.  However, she did not depart and had overstayed since 3 October 2016.  On 16 November 2016, she surrendered to the Immigration Department.  By way of written submissions respectively dated 13, 16 and 28 March 2017, she lodged a non-refoulement claim.  Her claim was made on the basis that, if refouled, she would be harmed or killed by her creditor Roberto Yambao. 

5.  In short, in 2008, under the influence of her husband, she started to participate in the activities of the political party in which Roberto was in. However, she and her husband were not members of the party.  In mid-2008, during a gathering, the applicant was assaulted by members of the party’s rivalry for refusing to join their party.  Meanwhile, she and her husband borrowed a loan from Roberto for their small business.  They later defaulted payments and were threatened and assaulted by Roberto.  Thereafter, the applicant came to work in Hong Kong with a view to soothing their financial situations. 

6.  In 2013, the applicant returned to the Philippine for vacation.  She learnt that her husband did not repay Roberto with the money she remitted back to him.  The applicant went to ask for extension from Roberto but she was assaulted and raped by him.  Then, the applicant returned to work in Hong Kong.  On 14 May 2016, she returned home again.  She learnt that her husband was detained due to a false case filed by Roberto.  As a result, she went to find Roberto.  She was again assaulted and raped by Roberto.  He also threatened to kill her if she failed to settle the loan.  Her report to the police was of no avail.  Out of fear, the applicant sought protection in Hong Kong.  Details of her claim are set out at paragraph 7 of the Notice of Decision dated 16 January 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

7.  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”).

8.  By way of the Director’s Decision, the Director dismissed the applicant’s claim.  In elaboration, the Director found that (i) the applicant’s claimed risk of harm from Roberto was groundless [14]-[16]; (ii) state protection would be available to her [17]-[22]; and (iii) internal relocation was a viable option [23]-[24].

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board. On 10 April 2019, the Board conducted an oral hearing for her appeal, during which she testified with the assistance of a Tagalog interpreter [30].

10.  The Board recapped the applicant’s claim, her personal background and her oral testimonies at the hearing [9]-[38].  Having considered the evidence, the Board found that the applicant’s evidence on Roberto was vague and unpersuasive [42]-[43]; that it refused to accept the applicant’s evidence on her participation of a political group [44]; that she was unable to provide any detail of Roberto’s political connections [45]; that her evidence about her encounters with Roberto was inconsistent, which she failed to provide cogent explanations [46]-[47]; that her evidence on the loan was vague and inconsistent [48]-[49]; and that her conducts were inconsistent with someone who genuinely feared a risk of harm [50]-[51]. 

11.  For the above reasons, the Board rejected the applicant’s claim on the basis of lack of credibility and dismissed her appeal.

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

12.  The applicant has filed Form 86 dated 8 May 2019 for leave to apply for judicial review of the Board’s Decision.

13.  In her affidavit in support of her application, the applicant said that the Board’s Decision is not satisfactory. She has not raised any specific ground.

DISCUSSION

14.  The The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its 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).

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

16.  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.”

17.  The Board had, for the reasons given in paragraph 10, supra, rejected her evidence and her claim that she has real risk of harm or being killed upon her return to the Philippines. It therefore dismissed her appeal.

18.  There is no valid ground from the applicant to challenge the Board’s Decision.

19.  The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.

CONCLUSION

20.  I refuse to grant leave for 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