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HCAL 2034/2019
[2024] HKCFI 2556
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO 2034 OF 2019
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BETWEEN
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Liberato Mary Grace Cantano |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative Respondent |
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and |
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Director of Immigration |
Putative Interested Party |
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| Before: |
Deputy High Court Judge K.W. Lung in Chambers |
| Date of Judgment: |
15 October 2024 |
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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 11 July 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. I shall deal with her application on paper.
The applicant
3. The applicant, aged 41, is a national of the Philippines. She came to Hong Kong in 2017 to work as a domestic helper. Her employment contract was terminated on 14 July 2018. She did not depart and overstayed since 29 July 2018. On 30 July, she surrendered to the Immigration Department. She lodged her non-refoulement claim by written representations dated 9, 11, 18 and 25 January 2019 on the basis that, if refouled, she would be harmed or killed by (a) people from BILEG, a political party in Home City, her home town, due to political dispute and (b) her husband due to money dispute.
4. According to the applicant, BILEG (“the party”) is a powerful party in the Election (it is not clear from the Director’s Decision the nature of this organization). The mayor called Singson was the leader of the party. There were other councilors in the party. The applicant was employed by the party as a watcher of the Election. After the Election, Singson and other councilors of the party lost their seats in Election. They put the blame on her and threatened to kill her. When she was riding her motorbike, she was hit from behind. She recognized that the driver and the car belonged to the party. She lost consciousness and found herself in hospital when she came round. She had to be treated in hospital for 3 weeks, with injuries on various parts of her body. The CT scan showed that there was a blood clot in her brain. The matter was reported to police, which did not take any action. She had to move to live in Manila in order to avoid the party. But she received dubious phone calls from unknown source, which she believed to be from the party. In November 2015, she went to Singapore to work as a domestic helper in order to avoid the party. She returned to the Philippines on 16 April 2016. She stayed in Manila and was told that the party was still looking for her. She came to Hong Kong for employment. She did not believe that the state could protect her; nor did she believe that internal relocation viable as Singson has close connections with other political parties. She had disputes with her husband who demanded money from her and threatened to kill her.
The Director’s Decision
5. The Director had rejected her torture claim. Therefore, 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”).
6. By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found: (i) there are no substantial ground to believe that there will be any real or substantial risk of her being harmed or killed upon her return to the Philippines [12]; state protection will be available [19]-[22]; and internal relocation is viable [23]-[25].
The Board’s Decision
7. The applicant appealed the Director’s Decision to the Board. On 27 June 2019, the Board conducted an oral hearing for her with an interpreter.
8. Having considered the applicant’s evidence [42]-[72], the Board came to the conclusion that the applicant’s story is a fabrication:
“42 There was no reliable evidence that the Bileg Party had done any of the things they had been accused of. …
43. The Board rejects all of the Appellant’s claims that she had been denied assistance when she sought help from the Narvacan Police Station….”
9. The Board further found that internal relocation is viable [56] – [58].
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 July 2020 for leave to apply for judicial review of the Board’s Decision.
12. So far as the Board is concerned, the applicant has raised the grounds below in support of her application.
(1) The Board’s Decision is unreasonable. It has not taken into account her right to life.
(2) The Board had not given due weight to state acquiescence.
(3) The Board had placed too much weight on the Country of Origin Information without taking into account of her personal background.
(4) The adjudicator was unfair to require her to respond to questions that she was not in a position to offer any response. The adjudicator had also failed to pay attention to corruption of the police.
(5) The Board was irrational.
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. The grounds under paragraph 12 are bare assertions or her personal opinions without any evidence in support. They are not valid reasons to challenge the Board’s Decision[1].
17. The applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.
DISPOSITION
18. I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.
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(K.W. Lung) |
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Deputy High Court Judge |
The applicant was unrepresented.
[1] The Court of Appeal in Salim Ahmed alias MD Salim [2020] HKCA 244 held:
“20. … … general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case: Re Mizan Sikder [2019] HKCA 20 and Ibrahim v Simon Russell [2019] HKCA 1327.” See also Re Haider Khalil [2021] HKCA 223 [16].”
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