SARIAN MARIBEL CORPUZ v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1446/2019

[2024] HKCFI 640

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1446 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 present 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 21 May 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant requested an oral hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), she appeared before the Court on 28 August 2023.

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 is a national of the Philippines.  She last arrived in Hong Kong to be employed as a domestic helper on 30 January 2018 but her contract was prematurely terminated on 12 September 2018.  She did not depart after the stipulated deadline of two weeks thereafter and became an overstayer since 27 September 2018.  On 9 October 2018, she surrendered to the Immigration Department and subsequently raised a non-refoulement claim on 23, 31 October, 16 and 30 November 2018.  Her claim is on the basis she will be harmed or killed by members of a gang due to her husband’s loan dispute with them; and the occurrence of a drug trafficking incident.

5.  In short, the applicant discovered her husband was in a powerful gang (capable of influencing the police) after their marriage.  In around February 2013, her husband borrowed 150,000 Philippine pesos from the head of the gang in order to start an agricultural business, the terms and conditions of the loan of which were unknown to the applicant.  According to her, her husband has not made any repayment regarding this loan.  As to the alleged drug trafficking incident, she claimed that she and her husband was involved to transport illegal drugs in around late March 2013 in order to earn money.  They were instructed to carry “ice” from Manila to another city in the Philippines. However, the buyer of the “ice” paid them less than the agreed amount and the gangs mistakenly thought her husband stole the difference.  They therefore threatened to kill him if the difference was not paid.  In early April 2013, members of the gang came to the applicant’s home and beat her husband with their guns.  After the assault, they did not go to hospital as the injuries were not serious nor reported to the police as they knew the police would side with the gangsters.  In fear, she and her husband relocated to various parts in the Philippines and in around mid-2013, she was able to secure work as a domestic helper in Hong Kong.  When she returned to the Philippines in around 2015 and 2016, she did not go home and no harm occurred during this particular period.  However, when she returned to the Philippines in August/September 2017, she encountered members of the gang on the streets of Manila.  They gave chase but she was able to escape.  Terrified by this incident, she departed the Philippines again in January 2018 to seek work in Hong Kong.  Details of her claim are set out at [7] of the Notice of Decision dated 28 January 2019 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 gangsters had no real intention to seriously harm the applicant as there was only one physical incident that occurred (and it was not serious) with the gangsters and her alleged chase by the gangsters was mere speculation that they were still seeking her whereabouts [15.1] – [15.2]; (ii) her claim that the gangsters were connected with the police was a bare assertion without any objective evidence in support [15.3]; (iii) her account of events were unreliable and it cast doubts on her credibility, such as she had seen “ice”, but she was unable to give an accurate description of it; her return to the Philippines previously despite warning from her husband not to return [15.5]; (iv) there was state protection available based on objective and credible COI (including practical steps by the government to monitor the conduct of the police) [16]; and (v) internal relocation alternatives were available and reasonable [17].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board.  On 24 April 2019, the Board conducted an oral hearing for her appeal, during which she elected to evidence.

9.  The Board recapped the applicant’s background and claim [5] – [19]. Having considered the evidence, the Board found the factual matrices of her claim to be unconvincing and did not accept that there was any reasonable or probable truth therein [23] – [41].  In particular, it found contradictory evidence regarding the drug trafficking incident, such as her testimony at the hearing that the deal occurred in 2007 but was stated in 2013 in documents before the Director; the implausibility of her being some eight months pregnant and somehow would make contact with the drug dealers [24] – [31].  She also gave incongruent account of events regarding the loan dispute.  On her own facts, she earned over 750,000 pesos over the course of her employment in Hong Kong and she had remitted the money to her husband and family, but there was no explanation why the loan of about 210,000 pesos had not been repaid [32] – [35].  To conclude, the Board’s finding of facts led to the suggestion that it was unlikely that there would be risk of harm if the applicant returned to the Philippines [36] – [41].

10.  For the above reasons, the Board found the applicant’s claim failed on all applicable grounds 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.  The applicant has filed an affirmation in which she did not raise any specific ground.

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.  Before me, the applicant said that she does not agree with the Board’s Decision and she is pregnant.

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.  The Board had set out the reasons in support of its finding that the applicant failed to establish that she would be subjected to risk of harm if she returns to the Philippines.  On the whole, those reasons given by the Board are acceptable, though on issue like the explanation for not being able to settle the debt by the money remitted, it will be subject to argument.  There is no evidence or finding as to the portion of the money remitted by the applicant to the applicant’s family and to her husband and how the money was spent by her husband.  On other issues such as the inconsistencies of her evidence before the immigration officer and the Board, the Board was entitled to form its own view on the applicant’s credibility.

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