CABORNAY EVELYN QUINAWAYAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 685/2019

[2022] HKCFI 2219

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 685 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 4 March 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”), the Court will deal with her application on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, 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 entered Hong Kong on 12 October 2017 under the strength of her foreign domestic helper visa.  Her employment contract was however terminated on 20 October 2017.  She did not depart within the limitation of stay and had overstayed since 4 November 2017.  On 8 November 2017, she surrendered to the Immigration Department.  On 21 November 2017 and 9 January 2018 respectively, she lodged a non-refoulement claim.  Her claim was made on the basis that, if refouled, she would be harmed or killed by the members of New People’s Army (“NPA”), a terrorists group.

5.  According to the applicant, she worked as a community development worker in a local business resource center in 1996.  Her duties were to assist the villagers in setting up businesses and to provide finances to them.  Later, she was assigned to another village where she met a man called Anastacio Pacuan (“AP”), who was a high ranking officer in NPA.  In 1998, AP forced the applicant to handle some work for NPA.  She also attended party meetings and rallies.  In March 2003, the applicant decided to cease her support for NPA. She also visited the military and gave them information about NPA’s hideouts. The next day, she was informed that AP found out about her betrayal.  Out of fear, she fled to Hong Kong for protection.  Details of her claim are set out at paragraph 6 of the Notice of Decision dated 11 June 2018 (the “Director’s Decision”) and paragraphs 3 to 22 of the Board’s Decision.  

The Director’s Decision

6.  The Director considered the applicant’s claim in relation to the following risks:

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

(2)  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”) (“BOR 2 risk”);

(3)  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

(4)  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 as her claimed risk of harm was assessed to be low and her claim speculative.  In elaboration, the Director found that (i) the absence of past ill-treatments indicated an unlikelihood of future risk of harm [13]; (ii) her behaviors were inconsistent with someone who was in need of protection [14]; (iii) there was no evidence showing that she was targeted by the NPA or that they had sufficient power to locate her everywhere [15]-[16]; (iv) state protection would be available to her [17]-[22]; and (v) internal relocation was a viable alternative [23]-[27].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board.  On 3 December 2018, the Board conducted an oral hearing for her appeal, during which she answered the Board’s inquiries [24]. 

9.  The Board considered the applicant’s oral evidence [24]-[37] and the relevant country of origin information [38].  It observed that the applicant did not produce any independent evidence to support her alleged involvements with the NPA [45].  It found that the applicant’s claim lacked credibility [46]-[51]. 

10.  In assessing the individual grounds, the Board further found that, since NPA was an outlawed group, none of the dealings between the applicant and the NPA involved state actors [56].  It also concluded that state protection and internal relocation were both viable alternatives [58]-[67]. 

11.  Therefore, the Board rejected the applicant’s claim and dismissed her appeal.

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

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

13.  In her affirmation in support of her application, the applicant enclosed the hearing bundle and other documents without specifying any ground.

DISCUSSION

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

15.  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).

16.  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.”

17.  The applicant has raised no valid ground to challenge the Board’s Decision.

18.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

19.  The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.

CONCLUSION

20.  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