BENIGNO BIANCA CHARMAINE RAVELO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 421/2024

[2024] HKCFI 1728

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 421 of 2024

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 present 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 13 December 2023 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.

The applicant

3.  The applicant, aged 42, is a Filipino. She last arrived in Hong Kong on 10 August 2019 to work as a foreign domestic helper. Her contract was pre-maturely terminated on 28 April 2020 and she overstayed since 13 May 2020. The applicant was arrested by the police on 1 June 2023 for overstaying and she lodged a non-refoulement claim on 12 June 2023. The claim was made on the basis that, if refouled, she would be harmed or killed by the family members of Eddie Gregorio (“Eddie”) as they suspected that she was the mastermind of killing Eddie.

4.  According to the applicant, Eddie was her lawyer friend, who was shot and killed in June 2009. Although the applicant was not charged after investigation by the police, Eddie’s family suspected that she was the mastermind as she was the last one to see Eddie before his death. Since then, Eddie’s family started sending death threatening messages via mobile phone to the applicant and her family.

5.  In about 2011, the applicant’s father died in a motorcycle accident. The applicant believed that her father was killed as a result of the death threats made by Eddie’s family because the death certificate stated that his neck was hit by a hard object. In the same year, the applicant relocated to Vintar with her husband and daughter in order to stay away from Eddie’s family. While in Vintar, the applicant claimed that there were three occasions when four men threw stones to her home in the middle of the night. In September 2011, the applicant moved to Manila for three months, after which she went to Singapore in 2012 as a tourist. The applicant returned to the Philippines after six months and stayed in Manila. In 2014, she came to Hong Kong to work as a foreign domestic helper until 2019.

6.  The applicant returned to Manila 3-4 times for holiday while working in Hong Kong. She claimed there was an occasion that stones were thrown at her car when her brother was driving it because someone thought the applicant was inside. Meanwhile, the applicant also learnt that Eddie’s family had come to her mother’s and brother’s home to look for her while she was in Hong Kong.

7.  The applicant was of the view that she could not seek protection from the police because Eddie’s brother was a police officer and she also thought that they were corrupt. The applicant considered internal relocation not viable as well because she believed that Eddie’s family could locate her in light of the national ID system.

8.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 12 September 2023 (“the Director’s Decision”).

The Director’s Decision

9.  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”).

10.  In any event, (i) state protection would be available to her upon her return [17] - [23]; (ii) internal relocation would be viable [16], [24] - [29] and (iii) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [30] - [35], Persecution risk [36] - [40] or Torture risk [41] - [44].

The Board’s Decision

11.  The applicant appealed the Director’s Decision to the Board. On 17 November 2023, the Board conducted an oral hearing.

12.  The Board found the central pillar of the applicant’s case highly implausible. It did not accept that she would face a real risk of harm from Eddie’s family given that Eddie had died some fourteen years ago. Furthermore, it considered that Eddie’s family had no intention to seriously harm or kill the applicant given that she had not even received any face-to-face threats, but only phone threats. In any event, the applicant’s delay in seeking protection was also inconsistent with her claim that she was genuinely in fear. Meanwhile, the Board were also not satisfied that the death of applicant’s father had anything to do with the threats by Eddie’s family [21] - [24].

13.  Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Persecution risk, Torture risk or BOR 2 and BOR 3 risk [26] - [44]. The applicant’s appeal was therefore dismissed and the Director’s decision was confirmed.

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

14.  The applicant has filed Form 86 on 6 March 2024 for leave to apply for judicial review of the Board’s Decision.

15.  In her affidavit in support of her application, the applicant only said that her life will be in danger and she wants to stay in Hong Kong.

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.  It is clear that the Board had considered her evidence and it came to its conclusion that the applicant failed to show that she will be harmed or killed as she alleged if she returns to her country. In the Board’s Decision, the Board stated:

“21. …It is difficult to believe that for the vague reasons given, the Appellant would have been subject to death threats for some fourteen years by the family of her friend who was murdered. …

22. On the available evidence, I am not satisfied that the Appellant’s father’s death was connected with the threats to the Appellant. On her own evidence, there is little to indicate that the official explanation, that it was a road accident, is not the case.

24. …I am not satisfied that the Appellant is at real risk of harm and in particular of being killed by the relatives of her murdered friend should she return to the risk state.”

20.  The applicant has raised no valid ground to challenge the Board’s Decision. There is no reason for the Court to interfere with the Board’s finding of the facts.

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

CONCLUSION

22.  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