DOYAOEN JOSEPHINE BIBA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2202/2019

[2024] HKCFI 3143

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2202 OF 2019

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Director’s Decision dated 15 May 2017, which was superseded by the Board’s Decision dated 20 April 2017 in respect of Torture risk, BOR 3 risk and Persecution risk (“the Board’s 1^st Decision”). The applicant also applies for leave to apply for judicial review of the Board’s Decision dated 18 July 2019 in respect of BOR 2 risk (“the Board’s 2^nd Decision”).

2.  The applicant’s application in respect of the Board’s 1^st Decision is out of time. However, since her application in respect of the Board’s 2^nd Decision is within time and the Board’s Decisions are based on the same set of facts, I shall consider the Board’s Decisions in one go.

3.  The applicant asked for a hearing. She appeared before the Court on 28 October 2024.

4.  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, the Director of Immigration is the interested party.

The applicant

5.  The applicant, aged 45, is a Filipino. She entered Hong Kong as a visitor on 22 June 2009 and overstayed since 7 July 2009. The applicant was arrested by the police on 30 July 2013 for overstaying and was sentenced to imprisonment of 4 months on 9 September 2013. The applicant made a non-refoulement claim on 13 May 2014. The claim was made on the basis that, if refouled, she would be seriously harmed or even killed by her friend’s creditor because her friend defaulted the loan and she was the guarantor.

6.  According to the applicant, in around June 2007, her friend wanted to expand her business and she took out a loan from the creditor with the applicant acting as the guarantor. After paying two instalments in July and August 2007, the applicant’s friend disappeared. One day in mid-December 2007, while the creditor was drunk, she went to threaten the applicant to repay her friend’s loan. Subsequently, in late February 2008, the creditor also assaulted the applicant with a knife when she was drunk. The applicant’s husband reported the assault to the police and a warrant was issued against the creditor. In March 2008, the applicant and her husband relocated away from their hometown. When she contacted a friend in August/September 2008, she was informed that the creditor was still after her. The applicant first came to Hong Kong in April 2009, but she went back to the Philippines in May 2009. She returned to Hong Kong on 22 June 2009, after which she overstayed.

7.  When the applicant contacted her husband in June 2011, she was told that the creditor was still looking for her. Since July 2013, she lost contact with her husband. She was of the view that she could not seek protection from the authorities because they only help the rich people. The applicant considered internal relocation not viable as well because the creditor was still after her and she feared facing discrimination as her husband had abandoned her. She also worried that she would be unable to earn a living upon return and be exposed to women trafficking. In any event, she lacked the financial capability for relocation.

8.  Details of the story of the applicant can be found in paragraph 6 of the Director’s Decision dated 7 September 2015 (“the Director’s 1^st Decision”).

The Director’s Decisions

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.  By way of the Notice of Decision dated 7 September 2015 (“Director’s 1^st Decision”), the Director dismissed the applicant’s claims on Torture risk, Persecution risk and BOR 3 risk. The Director found that: (i) the low intensity of past ill-treatment from the creditor indicated a small future risk of harm upon her return to the Philippines, particularly considering that the threatening and assault incidents happened when the creditor was under the influence of the alcohol [15]; (ii) the failure by the creditor to find her after she relocated and her decision to return to the Philippines in May 2009 showed that the risk of harm was not as imminent as she claimed [16]; (iii) state protection would be available [17]-[26] and (iv) internal relocation would be viable [27]-[30].

11.  In the Notice of Further Decision dated 15 May 2017, the Director also rejected the applicant’s claim on BOR 2 risk (“the Director’s 2^nd Decision”) for the reason that there was no evidence to show that her right to life under BOR 2 would be violated upon her return.

The Board’s Decision

12.  The applicant appealed the Director’s 1^st Decision to the Board. The Board considered that the appeal could be justly determined without a hearing because there was no issue concerning the credibility of the applicant. The appeal was therefore proceeded on such basis [6]-[7].

13.  The Board found the applicant’s predicament arose from a private debt dispute and the injury she suffered from the creditor failed to reach the requisite level of severity [35]-[37]. Meanwhile, the claim that the creditor was still looking for her was merely hearsay [43].

14.  The Board was not satisfied that the applicant faced real risk of harm upon her return to the Philippines [44]. In any event, state protection and internal relocation would be available [45]-[47]. Her worry about discrimination was also not accepted as the Board considered that she could find employment opportunities in Metro Manila [48].

15.  Based on such findings, the Board, by Decision dated 20 April 2017 (“the Board’s 1^st Decision”) rejected the applicant’s claim on Persecution risk, BOR 3 risk and Torture risk [8]-[14], [49]-[59]. The applicant’s appeal was therefore dismissed and the Director’s 1^st Decision was confirmed.

16.  The applicant also appealed the Director’s 2^nd Decision to the Board, but was made out of time. She explained that she had changed her residential address and hence there was a delay in accessing the mailbox at her former address [13].

17.  The Board noted that the Director’s 2^nd Decision was sent to the same address which the applicant used in her Notice of Appeal/Petition [15]. She did not state when she changed her residential address and did not inform the Immigration Department of such change [17].

18.  The Board found no special circumstances that would make it unjust to disallow the late filing [19]. The applicant’s appeal was therefore dismissed and the Director’s 2^nd Decision was confirmed. The Board’s Decision dated 18 July 2019 is called (“the Board’s 2^nd Decision”).

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

19.  The applicant has filed Form 86 dated 2 August 2019 for leave to apply for judicial review of the Board’s Decisions.

20.  In her affirmation in support of her application, the applicant has set out the reasons below to challenge the Board’s Decisions.

(1) She considered that Board erred in refusing to extend time for her to file her notice of appeal because she had moved without updating the Director or the Board. However, she did not receive the Director’s letter for her to supply information on BOR 2 risk.

(2) The Board should refer to the Duty Lawyer Service so that she might have legal advice. This is an error on the management on the part of the Board.

(3) She did not have language assistance.

(4) The Board did not hold an oral hearing for both of its Decisions. She did not have the chance to give additional information on BOR 2 risk.

DISCUSSION

21.  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).

22.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that she understood the Board’s Decisions. She said that if she has to relocate, she has to leave her property in Baggio.

23.  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.”

24.  As to the applicant’s grounds to challenge the Board’s Decisions, her failure of updating the Director and the Board of her new address is her own mistake, for which she has to take the responsibility as the Court of Appeal in Re: Zamora Rowel Espiritu [2022] HKCA 1883, Hon Barma JA and Au JA, 30 December 2022 held:

“18. In any event, it is incumbent upon the applicant to notify the court of any change of address as soon as possible, and any consequences of having failed to do so lie with him.”

25.  The Board has no duty to refer the Board’s Decision to the Duty Lawyer Service. As the applicant said, her duty lawyer had advised her that her claim had no merit. This ground fails.

26.  The applicant is not entitled to free legal representation at all times, as the Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178 held:

“22. This Court has repeatedly held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration. We do not find anything amiss arising from lack of legal representation in the process before the Board.”

27.  The applicant has not stated what prejudice she had suffered for no hearing by the Board. Section 12 of Schedule 1A of the Immigration Ordinance, Cap. 115 provides:

“Determination of appeal without a hearing

The Appeal Board may determine an appeal without a hearing if, having regard to the material before it and the nature of the issues raised, the Board is satisfied that the appeal can be justly determined without a hearing.”

28.  Judging from the facts as alleged by the applicant, it is logical for the Board to make the decision of determining the issues without a hearing because such facts, even if accepted, do not give the applicant any reason for non-refoulement protection under the law and Convention. The applicant has raised no valid reason to challenge the Board’s Decisions.

DISPOSITION

29.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decisions. Accordingly, I dismiss her application.