CONCHA ANGELIE DAYNOS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1368/2019

[2024] HKCFI 529

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1368 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 16 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 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 last arrived in Hong Kong on 19 April 2017 as a foreign domestic helper but her contract was prematurely terminated on 1 August 2017. She surrendered to the Immigration Department on 30 August 2017 and raised a non-refoulement claim on 20 September 2017 and 4 October 2017. Her claim is on the basis that, upon being refouled, she will be harmed or killed by her husband (“Joepel Concha”) due to a dispute relating to him being a member of the New People’s Army (“NPA”).

5.  The applicant and Joepel were married in February 2011 and she gave birth to their son in 2014. Prior to their marriage, she knew that Joepel was part of the NPA, a militant group in the Philippines fighting against the government, but he had told her that he already had left the NPA. However, after the birth of their son, she discovered that Joepel lied and was in fact still a member of the NPA. Due to this concealment, their relationship was strained and they seldom talked to each other. In around 2015, the applicant decided to leave Joepel and returned to her family home, whilst her son was put in the care of her mother-in-law. She also decided to find work in Hong Kong and was able to secure employment in 2016. When she returned to the Philippines for a visit, she discovered Joepel was training their son how to use firearms and other weapons. She initially attempted to verbally request Joepel to cease this negative influence on their son. However, Joepel avoided her and without any alternatives, she sought assistance from the Social Welfare Department in the Philippines. She was able to ultimately obtain a protection order from the authorities and custody of her son was granted to her parents instead of Joepel. After this ordeal, Joepel consistently harassed the applicant’s parents but they were never seriously assaulted. On one occasion in 2016, she attempted to stop a fight between Joepel and her father and was hurt when Joepel threw a stone at her. In around February 2017, she was due to arrive in Hong Kong to be employed as a domestic helper, but Joepel threatened to take their son away if she left the Philippines. The applicant entrusted her parents to care for her son. There have been no threats from Joepel directly (only via her parents) since her second employment period in Hong Kong. Details of her claim are set out at paragraph 7 of the Notice of Decision dated 9 July 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 low intensity and frequency of ill-treatment by Joepel in the past is indicative of a small future risk of harm to the applicant if refouled, as there was only one incident where she suffered injuries, and she was able to return to work two months later, which further indicated the risk of harm was not as real or as imminent as claimed [13]; (ii) there was also no indication that Joepel truly intended to cause any harm to her, as his belligerent behavior was often caused by inebriation [14]; (iii) state protection was available which further lowered or negated the level of risk [15] – [17]; and (iv) internal relocation was also available and reasonable [19] and [20].  

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board. On 25 January 2019, the Board conducted an oral hearing for her appeal, during which she was assisted by an interpreter [6].

9.  The Board recapped the applicant’s claim, her personal background, and pertinent legal principles relating to non-refoulement protection [7] – [19]. In essence, the Board found major inconsistencies in her testimony and her evidence mendacious [27] – [33]. This included a centerpiece of her claim that Joepel was purportedly in the NPA, however, she deposed before the Director that he belonged to the Moro Islamic Liberation Front instead [27]. When confronted with this inconsistency, the applicant did not provide any explanation. The Board also found her delay for not seeking non-refoulement protection at the first opportunity when she arrived in Hong Kong in 2016 was inconsistent with someone seeking asylum [32]. Having failed to establish the factual matrices of her claim, the Board found the applicant was not entitled to non-refoulement protection under any of the applicable grounds [34] – [38].

10.  In the circumstances, the Board dismissed the applicant’s appeal and confirmed the Director’s Decision.

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

11.  The applicant has filed Form 86 dated 21 May 2019 for leave to apply for judicial review of the Board’s Decision.

12.  The applicant has raised no specific ground in support of her application.

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 10, the Board did not accept the applicant’s evidence and found that she is not at real risk of being harm or killed by her husband if she returns to the Philippines.

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