VILLAREAL GINA NUEVA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3140/2019

[2025] HKCFI 2877

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 3140 OF 2019

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BETWEEN

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J U D G M E N T

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 26 September 2019 of the Torture Claims Appeal Board (“the Board’s Decision).

2.  The applicant did not request an oral hearing. I shall deal with her application on the papers.

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, aged 54, is a national of the Philippines. She had been a domestic worker in 2006, until May 2016 and she remained in Hong Kong as a visitor. She overstayed and was arrested on 14 November 2016. She then lodged a non-refoulement claim on the basis that, if refouled, she will be harmed of killed by her boyfriend Roberto.

5.  According to the applicant, she was divorced in 1995 and became Roberto’s girlfriend. In 1999, she became pregnant and Robert began to subject her to domestic violence when he was drunk, eventually beating and kicking her so severely that she suffered a miscarriage. She used to remit him money when she worked as a domestic worker. She ceased do so when she learned that he had sent the money to his sister. He then threatened to kill her if she returned to the Philippines. Those are the reasons for her stay in Hong Kong.

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 Notice of Decision dated 6 December 2018 (“the Director’s Decision”), the Director dismissed the applicant’s claim because it was unsubstantiated.

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board. On 12 July 2019, the Board conducted an oral hearing for her with an interpreter.

9.  Having considered the applicant’s evidence, the Board came to the conclusion that her evidence was unreliable because there were inconsistences between her evidence given to the Director and the evidence before the Board; that the Board pointed out such discrepancies to her and she was unable to give any explanation; that her response to the Board’s questions was vague and inconsistent. [23]-[32]

10.  For the above reasons, the Board dismissed her appeal.

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

11.  The applicant has filed Form 86 dated 23 December 2019 for leave to apply for judicial review of the Board’s Decision.

12.  In her affidavit in support of her application, the applicant did not raise any specific reason to challenge the Board’s Decision.

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 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).

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.  In my view, the Board was entitled to come to its views above.

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 of the Board’s Decision.

DISPOSITION

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