BARBIN SHERYRLL PERALTA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 684/2019

[ 2022] HKCFI 2066

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 684 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 24 January 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 entered Hong Kong on 5 October 2014 under the strength of her foreign domestic helper visa. Her employment contract was however prematurely terminated on 15 August 2015. She did not depart within the limitation of stay and had overstayed since 30 August 2015. On 20 October 2015, she was arrested by the police for overstaying. On 27 October 2015, she lodged a non-refoulement claim. Her claim was made on the basis that, if refouled, she would be harmed or killed by her ex-boyfriend, Leo.

5.  According to the applicant, she became the mistress of Leo in 2013. After she moved in with Leo, she found out that he had drinking and drug problems. He was physically abusive when he was drunk or took drugs. His family members also threatened the applicant when their relationship was exposed. The applicant intended to leave but was threatened by Leo. She was imprisoned. Thereafter, she managed to escape from Leo’s house and fled to Hong Kong. Feared that Leo would harm or kill her due to her abandonment, the applicant stayed in Hong Kong for protection. Details of her claim are set out at paragraph 8 of the Notice of Decision dated 29 January 2018 by the Director (the “Director’s Decision”) and paragraph 19 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, Cap. 383 (“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 on the basis that she would not face any real or substantial risk of harm upon refoulement. In elaboration, the Director found that (i) there was no evidence that Leo had real intention to harm or even kill her. In addition, before the Director, the applicant stated that Leo was in prison and there was no evidence of his release [15]; (ii) the evidence showed that the alleged injuries sustained by the applicant failed to attain the minimum level of severity [16]; (iii) her behaviors were also inconsistent with someone who genuinely needed protection [17]; (iv) it was her speculation that Leo’s family would harm her [18]; (v) there was no evidence that Leo or his family was influential enough to locate her everywhere [19]; (vi) state protection would be available to her [20]-[26]; (vii) internal relocation was also a viable alternative [27]-[28].

The Board’s Decision

8.  The applicant appealed Director’s Decision to the Board. On 8 November 2018, the Board conducted an oral hearing for her appeal.

9.  Having considered the applicant’s evidence, the Board rejected her claim based on the following findings: (i) she was not inflicted with serious harms by Leo; (ii) she did not seek non-refoulement protection in Hong Kong promptly; (iii) she stated before the Board that she intended to seek another employment and (iv) seeking non-refoulement protection was the last resort after she was arrested [22]. In assessing the individual ground, the Board also noted that it was private dispute without state involvement; that state protection was available to her; that internal relocation was also viable [40]-[44].

10.  For these reasons, the Board rejected her claim and dismissed her appeal.

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

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

12.  In her affidavit in support of her application, the applicant said she rejected the Board’s Decision, enclosing a copy of it but without setting out any ground.

DISCUSSION

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

14.  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).

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 considered the merits of the applicant’s case and given reasons in support of its conclusion. The applicant has not raised any valid ground to challenge the Board’s Decision.

17.  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.

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