PIS-O JONALICE BALAG-EY v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1450/2019

[2024] HKCFI 1097

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1450 of 2019

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 20 May 2019 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”), her application is dealt with on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC 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 45, is a national of the Philippines.  She has been working as a domestic helper since 2006 and upon termination of her employment contract, she remained as a visitor in Hong Kong until 19 June 2013.  On 20 May 2015, she arrived in Hong Kong again as a visitor but she did not depart after the stipulated deadline and became an overstayer.  She surrendered to the Immigration Department on 20 February 2017 and raised a non-refoulement claim on 21 November 2017.  She claimed that she would be harmed or killed by: (i) a loan shark due to an outstanding debt; and (ii) June De Los Reyes, a man who sexually molested her in 2001. 

5.  According to the applicant, her family was in poverty and her grandparents had to borrow a huge loan from a loan shark (the identity of which is unknown) around when her sister was four years old.  On one night (the date of which the applicant cannot recall), her brother was shot dead and she suspected the loan shark was the mastermind behind the attack.  In 2005, 2006 and 2013, the loan shark would come to her grandparents’ house to demand repayment.  During the last occasion in 2013, the loan shark came to the applicant’s house to demand payment and threatened to kill her if she did not pay.  The loan shark also threatened her that if she disobyed, her daughter would need to marry his brother.  Her grandparents have since passed away and she claimed she took up all their responsibilities.  As to the alleged fear from June De Los Reyes, the applicant claimed he was a neighbor from his mother’s hometown.  He molested her in 2001 and she reported this incident to the police.  He was arrested and imprisoned from 2002 to 2017.  Upon his release, the applicant’s son and daughter informed her that June visited them on 30 January 2018 and asked for her whereabouts.  Details of her claim are set out at [7] of the Notice of Decision dated 4 October 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:

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

b.  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”);

c.  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

d.  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.  In elaboration, the Director found that: (i) the risk of harm was assessed to be low as the loan shark had never inflicted any physical harm on the applicant, and the murder of her brother was only a presumption; and in any event, she was able to remain safe in the Philippines from 2013 to 2015 [15]; (ii) her delay in lodging her non-refoulement claim was inconsistent with someone seeking asylum as the threat from the loan shark had begun already in 2005 [17]; (iii) as for the threat from June, the fact that he was arrested and imprisoned showed law enforcement was effective in the Philippines and there was no evidence to indicate he had a large enough network to locate her [20]; (iv) state protection was available based on credible and objective COI [21] – [25]; and (v) internal relocation alternatives were also available which further lowered or negated the perceived risk [26] and [27].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board.  On 15 March 2019, the Board conducted an oral hearing for her appeal, during which she elected to give evidence and answered the Board’s questions [58] – [86].  

9.  Having considered the totality of evidence, the Board found the applicant was not a witness of truth and that she had fabricated her claims regarding the loan shark and the molester June [90].  The Board’s findings against the applicant were based on several factors: (i) her evidence regarding the centerpiece of her claim, the threat from the loan shark, was vague and contradictory; such as not knowing the amount of the loan and the same being outstanding for some 10 years by the time she was threatened in 2006 [92] – [95]; (ii) she claimed at the hearing that she also had obtained a loan for herself from the same loan shark, the details of which were inconsistent, and thus the Board was not prepared to accept this assertion; and (iii) her evidence in relation to the threat from the molester June was confusing, such as her testimony that June had instead killed his own uncle which caused his incarceration [99].  In light of these adverse findings, the Board held she never had any issues with any loan shark or any molester by the name of June [102] – [106].  She was therefore safe to return to the Philippines [107].

10.  For the above reasons, the Board rejected the applicant’s claim and dismissed her appeal.

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

11.  The applicant has filed Form 86 dated 28 May 2019 for leave to apply for judicial review of the Board’s Decision.

12.  In her affidavit in support of her application, the applicant has raised the grounds below. Many of the grounds relate to the interview before the immigration officer, which are irrelevant to the Board.  I shall therefore focus on the grounds relating to the hearing before the Board.

(1)  The Board was wrong to say that because she did not suffer from any torture, it would not happen to her in the future.

(2)  She is still trying to obtain the police reports of the death of her brother and her father.  Her mother is trying to get the reports from the police.  But the reports are still not available.

(3)  The Board was confused with the facts relating to her claim against Jun De Los Reyes and it said she had sidestepped the question.

(4)  The Board was wrong to conclude that she would not be at risk of torture as she and her family were not accused, charged, interrogated, arrested, detained or imprisoned in the Philippines.  Such facts do not speak for the future possibility.

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

15.  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.”

16.  For the reasons given in paragraph 9 above, the Board found that the applicant is not a reliable witness and rejected her evidence on the facts of her claim.  Those grounds in paragraph 12 are not valid to challenge the Board’s Decision.  Grounds (1) and (4) are her opinions only. Ground (2) is irrelevant as the Board rejected her evidence not because of the police reports, but her evidence as a whole.  Ground (3) is also irrelevant as the Board was trying to clarify her evidence that she had claimed against June.  If her claim was a civil claim, the result would not be imprisonment for June.  She sidestepped the question.  However, this is not relevant to the findings of the Board on the facts of her claim.

17.  The applicant has raised no 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.

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