RUMA LEMURA SIBAL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 120/2025

[2025] HKCFI 1084

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 120 OF 2025

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BETWEEN

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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 17 December 2024 of the Torture Claims Appeal Board (“the Board’s Decision).

2.  The applicant did not request an oral hearing. I shall deal with her application on the papers.

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 47, is a national of the Philippines. She came to Hong Kong as a visitor on 22 December 2016. She overstayed since 4 January 2017. She surrendered to the Immigration Department and lodged a non-refoulement claim by written signification dated 14 August 2024 on the basis that, if refouled, she will be harmed or killed by her husband’s mistress called Mary and the hitman hired by her.

5.  According to the applicant, in September 2016, her husband left her for his mistress, taking with him his daughter, and he never returned. She returned to the Philippines in 2016 after her employment contract had terminated in Hong Kong as a domestic helper. She then received phone calls and texts messages from Mary, saying that she had hired a hitman to kill her so that she could marry her husband. She was scared and came to Hong Kong in order to avoid her.

6.  Details of her story are set out in the Notice of Decision dated 9 October 2024 (“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. The Director found that there was no evidence to show that there will be any real and substantial risk of her being harmed or killed by Mary and her hitman upon her return to the Philippines; that the dispute between her and Mary was a private matter without state involvement at the local level and there was no evidence that Mary will be able to trace her if she returned to the Philippines; that state protection will be available; and internal relocation is viable. [13]-[26]

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board. On 29 November 2024, the Board conducted an oral hearing for her with an interpreter. As the applicant was being detained in Castle Peak Bay Immigration Centre, the hearing was conducted by way of video conferencing system.

10.  Having considered the applicant’s evidence, the Board found that the applicant had not made out a case for the applicable risks. [40], [46],[52],[56] & [60]. Furthermore, the Board found that internal relocation is viable for the applicant.

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

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

12.  The applicant has filed Form 86 dated 9 January 2025 for leave to apply for judicial review of the Board’s Decision.

13.  The applicant has not raised any specific ground to challenge the Board’s Decision in her affidavit in support of her application.

DISCUSSION

14.  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).

15.  The Court will bear in mind that the Board’s Decisions 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 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.