SISNORIO MICHELE SOL v. TORTURE CLAIMS APPEAL BOARD/ NON REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2293/2018

[2022] HKCFI 2970

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2293 of 2018

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 15 October 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), 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 is a national of the Philippines. She entered Hong Kong on 25 July 2016 as a foreign domestic helper and was permitted to stay until 25 July 2018. Her employment contract was however terminated. She did not depart within the limitation of stay and had overstayed since 16 October 2016. On 24 October 2016, she surrendered to the immigration. On 16 and 24 January 2018 respectively, she lodged a non-refoulement claim. Her claim was made on the basis that, if refouled, she would be killed by her husband Sisnorio, Jose Neri Molina and her sister in law, Nelly Sisnorio.

5.  In brevity, the applicant claimed that, ever since their marriage in February 1998, her husband had been abusive due to his drug and drinking problems. Whenever she returned home for her vacations, her husband would try to beat her up. Yet, she did not sustain any injuries as she escaped successfully. In around 2015 or 2016, she had an affair in Hong Kong. Upon knowing her affair, her husband and sister in law were both furious and threatened that she would not see her children again. Thus, she decided to stay in Hong Kong. Details of her claim are set out at paragraph 6 of the Notice of Decision dated 7 February 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

6.  The Director considered the applicant’s claim in relation to the following risks:

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

(2)  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”);

(3)  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

(4)  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”).

7.  By way of the Director’s Decision, the Director dismissed the applicant’s claim on the basis that the level of risk of harm upon her refoulement was assessed to be low. In elaboration, the Director found that (i) the ill-treatments inflicted on her failed to attain a minimum level of severity [11]; (ii) her behaviors were inconsistent with someone who genuinely needed protection [12]; (iii) her alleged fear was based on speculations [13]; (iv) the threats from her husband and sister-in-law were localized [14]; (v) state protection would be available to her [15]-[16]; and (vi) internal relocation was a viable alternative [17]-[18].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board. On 19 June 2018, the Board conducted an oral hearing for her appeal, during which she gave evidence with the assistance of an interpreter [13].

9.  Having considered the evidence, the Board gave the applicant benefit of the doubt and accepted that she was a victim of domestic violence [28]. The Board also accepted that she was subjected to the physical harms but was never injured as she was able to escape [29]. It also accepted that the applicant was threatened that she would never meet her children due to her affair in Hong Kong [30].

10.  Nevertheless, the Board found that the ill-treatments did not attain a minimum level of severity; that it was private dispute without state involvement, and that state protection was available to her. On these premises, the Board rejected her claim on the ground of Torture risk [33]-[47]. In light of the same reasons, and the finding of the availability of internal relocation [55], the Board also rejected the applicant’s claim on the remaining grounds. The applicant’s appeal was therefore dismissed.

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

11.  The applicant filed Form 86 dated 22 October 2018 for leave to apply for judicial review of the Board’s Decision.

12.  In her affidavit in support of her application, the applicant said that she had no evidence of her physical injuries. But the fact remained that she was subjected to abuse of her husband. She did not want to go back as her life would be in danger.

DISCUSSION

13.  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).

14.  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.”

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

16.  Based on the finding of the facts, the Board rejected her claim. There is no valid reason to challenge the Board’s Decision from the applicant.

17.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

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

CONCLUSION

19.  I refuse to grant leave to 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