TIMPAC FERMINA LIEGEN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2246 /2019

[2025] HKCFI 202

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2246 OF 2019

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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 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dated 22 July 2019 on BOR 2 risk (“the Board’s 2^nd Decision”). There is another decision dated 3 February 2017 on Torture risk, BOR 3 risk and Persecution risk (“the Board’s 1^st Decision”), which the applicant has not applied for leave for judicial review. Since the Board’s 2^nd Decision and the Board’s 1^st Decision are based upon the same set of facts, this Court will consider both Board’s Decisions together.

2.  The applicant did not request a hearing. 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 47, is a Filipino. She came to Hong Kong on 20 June 2013 and was permitted to stay as a visitor until 4 July 2013. She overstayed and she was arrested by police. She lodged her non-refoulement claim by way of a written representation received by the Immigration Department on 27 January 2014 on the basis that, upon refouled, she would be harmed or killed by an illegal money-lender named Miguel Omengan (“Miguel”) due to her inability to repay a loan that she borrowed from him in November 2012.

5.  According to the applicant, she borrowed from Miguel Philippine Pesos 225,000, including interest, to be repayable after 5 months. She had used the loan to buy stocks in trade in Hong Kong for profit. It was 2 months after the draw-down of the loan, Miguel and his people came to her in the Philippines for repayment of the loan, with the threat that if she could not repay, something would happen to her and her family. She was stressed by the threat and she came to Hong Kong to avoid Miguel. Details of the story of the applicant can be found in paragraphs 8-19 of the Board’s 2^nd Decision.

The Director’s Decisions

6.  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”);

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”); and

d. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”).

7.  By way of the Notice of Decision dated 1 April 2015 (“Director’s 1^st Decision”), the Director dismissed the applicant’s claim on Torture risk, Persecution risk, and BOR 3 risk for the reasons that (i) the low intensity and frequency of past ill-treatment from Miguel is indicative of unlikeness of future risk of harm upon her return to the Philippines [13]-16]; (ii) the availability of state protection further lowers or negatives the level or risk [17]; and (iii) internal relocation is viable [18].

8.  The applicant was invited to make further submissions on BOR 2 risk. She did not respond to the Director’s request. The Director assessed her claim on the evidence before it. By Notice of Further Decision dated 29 May 2017 (“the Director’s 2^nd Decision”), the Director rejected her claim on BOR 2 risk for the reason that it was not substantiated.

The Board’s Decisions

9.  The applicant appealed the Director’s 2^nd Decision to the Board. On 11 January 2019, the Board conducted an oral hearing.

10.  As to the applicant’s appeal against the Director’s 1^st Decision, the Board conducted a hearing on 1 June 2016 for the applicant’s appeal. In this hearing, the applicant was unrepresented and she had given oral evidence.

11.  Having considered the evidence, the Board dismissed her appeal against the Director’s 1^st Decision for the reasons that (i) her evidence was unconvincing and generally lacking in credibility [36]; (ii) her claim that she would be harmed or killed by Miguel if she returned to the Philippines were no more that bare assertions and were not supported by any admissible evidence [40]; and (iii) the Board was not persuaded that she would be subjected to any ill-treatment if she was refouled to the Philippines [42].

12.  The Board therefore dismissed the applicant’s appeal and confirmed the Director’s 1^st Decision.

13.  With regard to the Director’s 2^nd Decision, the Board considered that it was not necessary to conduct another hearing and dealt with the appeal on paper. The Board adopted the facts as found in the Board’s 1^st Decision and concluded that the applicant had failed to establish that she would be subjected to any BOR 2 risk if she returned to the Philippines. It therefore dismissed the applicant’s appeal against the Director’s 2^nd Decision.

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

14.  The applicant has filed Form 86 dated 7 August 2019 for leave to apply for judicial review of the Board’s Decision.

15.  In the affidavit in support of her application, the applicant did not raise any specific ground to challenge the Board’s Decisions.

DISCUSSION

16.  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).

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

18.  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.”

19.  The applicant has raised no valid ground to challenge the Board’s 2^nd Decision.

20.  The applicant therefore fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s 2^nd Decision.

DISPOSITION

21.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s 2^nd Decision. Accordingly, I dismiss her application.