REGENCIA ROSANNA ROPEREZ v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1717/2019

[2024] HKCFI 1862

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1717 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 14 June 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant requested an oral hearing. However, she was absent at the hearing on 3 June 2024 without prior notice to the 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 43, is a Filipino. She last arrived in Hong Kong as a visitor on 28 March 2009 and overstayed since 12 April 2009. On 9 September 2009, she was arrested by the police. The applicant made a torture claim on 12 September 2009, which was rejected on 12 March 2013. The applicant made a further non-refoulement claim on all applicable grounds other than Torture risk[1] on 28 May 2013. The claim was made on the basis that, if refouled, she would be harmed or even killed by (i) her husband because he did not want her to separate with him and (ii) her friend because the applicant owed her money.

5.  According to the applicant, she married her husband in 1998. Since 2000, her husband started to assault her at least once a week, during which he slapped her and aimed a gun/knife at her. In 2001, the applicant engaged an employment agency to assist her in getting a job in Hong Kong. The agency managed to secure a job for the applicant in June 2003 and arranged a one-week training for her. In September 2003, the applicant told her husband that she intended to work in Hong Kong and would separate with him. Upon hearing the applicant’s plan, her husband beat her up severely and even bumped her head onto the wall. As a result, the applicant sustained bruises over her eyes and upper arms. She also got a lump at the back of her head.

6.  The applicant first arrived in Hong Kong to work as a foreign domestic helper on 20 November 2003. On 2 February 2009, the applicant returned to the Philippines and stayed with her parents. One day, she bumped into her husband in a computer shop, who threatened to kill her and her family if she refused to live with him. Her husband then punched her, pulled her hair and bumped her head. The applicant’s mother reported the matter to the Barangay Chief and her husband agreed not to assault her again after a mediation. Yet, when the applicant met her husband on the street on 8 March 2009, he punched and slapped her again. The applicant sought help from the Barangay Chief and led him to her husband’s house. However, her husband went into hiding and could not be found. On 11 March 2009, she learnt from her mother that a dead dog was found outside her house. When the applicant contacted her mother in December 2017, she told her that her husband had gone to her house once to look for her.

7.  Meanwhile, the applicant borrowed some money from her friend in 2005. In 2009, when her employment contract was pre-maturely terminated, she borrowed money from her friend again for payment of the agency fee. In September 2012, her friend threatened to kill her if she defaulted repayment after which the applicant changed her mobile phone to avoid her friend. Thereafter, the applicant learnt from her sister and mother that her friend had demanded loan repayment through them in October 2017 and January 2018 respectively.

8.  The applicant was of the view that she could not seek protection from the police because her husband’s father was a retired police officer and befriended the police. She also believed that the police would not handle her case because she had no money to bribe them. The applicant considered internal relocation not viable as well because her husband’s father, as a retired police officer, had the network and connection to locate her anywhere within the Philippines.

9.  Details of the applicant’s story can be found in paragraph 8 of the Director’s Decision dated 6 July 2018 (“the Director’s Decision”).

The Director’s Decision

10.  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”); and

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”).

11.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that (i) the low intensity and frequency of past ill-treatment received by the applicant indicated a low future risk of harm upon her return to the Philippines [14]-[16]; (ii) state protection would be available to her [18]-[22]; (iii) internal relocation would be viable [17], [23]-[24] and (iv) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [25]-[30] or Persecution risk [31]-[35].

The Board’s Decision

12.  The applicant appealed the Director’s Decision to the Board. On 12 March 2019, the Board conducted an oral hearing.

13.  The Board considered that the core of the applicant’s evidence inconsistent, vague and lacked credibility [88]. The Board found it implausible that her husband would adopt such a carefree attitude if the applicant left home to attend training for a week, as she claimed that her husband was so determined that she had to live with him [89]-[90]. Regarding her friend, the Board had doubts towards her background and found that the applicant failed to provide details about her friend despite claiming that they had a close relationship [92]-[93]. Furthermore, the applicant also gave inconsistent evidence in relation to the loan [94]-[95]. In any event, state protection and internal relocation would be available to her according to the country of origin information [72]-[85], [96], [109]-[111].

14.  Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk or Persecution risk [50]-[63], [99]-[108]. The applicant’s appeal was therefore dismissed and the Director’s decision was confirmed.

A letter dated 6 June 2024 from the Immigration Department that the applicant had been removed

15.  A letter dated 6 June 2024 from the Immigration Department states that the applicant was moved on 17 May 2024.

DISCUSSION

16.  Section 37ZF of the Ordinance provides, inter alia,

“Deemed withdrawal of torture claim on claimant’s departure

(1) A torture claim (whether a claim pending final determination or a substantiated claim) made by a claimant who is subject or liable to removal must be treated as withdrawn if the claimant (for whatever reason) leaves Hong Kong.”

17.  Other than this application, there is nothing outstanding in this action. This application should therefore be dismissed.

18.  The application is therefore dismissed.

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