BALANGGAO JENIVIB AWINGAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2517/2019

[2025] HKCFI 533

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2517 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 26 July 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 15 January 2025. I shall deal with her application on the papers.

The applicant

3.  The applicant, aged 38, is a Filipino. She last arrived in Hong Kong on 22 February 2016 to work as a foreign domestic helper (“FDH”). Her employment contact was prematurely terminated on 24 February 2016 and she had overstayed since 10 March 2016. The applicant was arrested by the police on 3 April 2016 for overstaying and she made a non-refoulement claim on 7 April 2016. The claim was made on the basis that, if refouled, she would be seriously harmed or even killed by her boyfriend Denis.

4.  According to the applicant, she began a relationship with Denis in around 2009/2010 and started co-habiting with him. After around a year, Denis began assaulting her whenever he got drunk. In 2012, the applicant came to Hong Kong to work as a FDH. When she returned to the Philippines for holiday in February 2016, she encountered Denis and was assaulted twice by him. Within a week, the applicant returned to Hong Kong.

5.  The applicant had maintained contact with her sister and was informed that Denis was still after her. She also claimed that Denis had sent her a message through Facebook, but she forgot its content. The applicant was of the view that the police would not protect her as she was only an ordinary citizen. She considered internal relocation not viable as well because she lacked the necessary connection and resources. She also feared to be located by Denis eventually.

6.  Details of the story of the applicant can be found in paragraph 7 of the Director’s Decision dated 26 November 2018 (“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 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”).

8.  By way of the Director’s Decision, the Director dismissed the applicant’s claim on Persecution risk, Torture risk, BOR 2 and BOR 3 risk. The Director found that: (i) the low intensity of past ill-treatment from Denis indicated a small future risk of harm upon her return to the Philippines [14]; (ii) the behaviour of Denis showed that he had no real intention to seriously harm or kill the applicant [15]; (iii) there was no evidence suggesting that Denis was as powerful as claimed by the applicant [16]; (iv) state protection would be available and there were also non-governmental organisations to provide the necessary assistance [17]-[20] and (v) internal relocation would be viable [21]-[22].

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board. On 24 May 2019, the Board conducted an oral hearing.

10.  The Board formed the view that while there might be some truth to the core of the applicant’s claims, she had embellished and invented some claims with the intention to exaggerate the risk of harm she faced from Denis. The Board accepted that the applicant might have been in a relationship with a man who assaulted her prior to her departure from the Philippines in 2012. However, given her vague, inconsistent and unpersuasive evidence, the claims that (i) she and Denis had maintained contact after her departure for Hong Kong in 2012; (ii) Denis assaulted her when she returned to the Philippines in February 2016 and (iii) Denis posed an ongoing risk of harm to her were rejected. In any event, internal relocation would also be available [46]-[57].

11.  Based on such findings, the Board rejected the applicant’s claim on Persecution risk, Torture risk, BOR 2 and BOR 3 risk [61]-[77]. The Board therefore dismissed the applicant’s appeal and confirmed the Director’s Decision.

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

12.  The applicant has filed Form 86 dated 30 August 2019 for leave to apply for judicial review of the Board’s Decision.

13.  The applicant has attached a statement of grounds in support of her application. Those grounds relate to the Director, whose decisions had been dealt with by the Board. Those grounds are that the Director did not take into account BOR 2 risk; he had not considered state acquiescence; the Director had failed to taken into account her arguments; the Director had failed to consider the evidence against state protection; the Director’s attitude is unfair as he has not considered the incompetency of the government; and the Director had failed to attain the high standards of fairness. Even if those grounds were taken to relate to the Board, they are her bare assertions or personal opinions without any evidence in support.

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.  Those grounds under paragraph 13 are not 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.