BESLUMBRE SHENYL LAVANDERO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2627/2019

[2025] HKCFI 755

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2627 OF 2019

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 30 August 2019 of the Torture Claims Appeal Board (“the Board’s Decision).

2.  The applicant requested an oral hearing. She appeared before the Court on 12 February 2025. She applied to adjourn the hearing for the reason that she had applied for legal aid. Her application was refused for the reasons that her application for legal aid is late for over 5 years and this Court did not accept her explanation that she did not know that there would be legal aid for her; and her application has no merit.

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 42, is a national of the Philippines. She last arrived in Hong Kong on 18 October 2014 and was permitted to remain as a visitor until 1 November 2014. On 21 November 2014, she lodged her non-refoulement claim by letter and surrendered to the Immigration Department a day later. Her claim was based on her fear of being harmed or killed by her family due to her giving birth to a son out of wedlock.

5.  According to the applicant, she had a Pakistani boyfriend in Hong Kong. Her boyfriend was working as caretaker and he is of Muslim. She gave birth to a boy. She returned home with her son. Her parents and friends knew that her boyfriend would come to the Philippines to marry her. However, he did not come. Her father was upset and felt humiliated for the child has no father. The son is a Muslim. The applicant’s father disapproved. She was tipped off by her mother one night around October 2014 that her father was planning to kill her and her son. Details of her story are set out at paragraph 6 of the Notice of Decision dated 15 May 2017 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 assessed the applicant’s claim and dismissed her claim. In summary, the Director found that: the low intensity and frequency of past ill-treatment from your family especially her father was indicative of a low future risk of harm and she was never injured by her family [14-16]; state protection was available and the applicant would be afforded reasonable protection by the authorities [17-19]; and internal relocation alternatives were available, not unduly harsh and reasonable [20-27].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board. On 30 November 2018, the Board conducted an oral hearing for her with.

9.  Having considered the evidence, the Board found that the applicant has proven a highly localized risk of harm and possibly death from her father on occasions when he is drunk, out of control, and violent [36]; and that family unity rights are not a bar to refoulement of foreign nationals without a right of abode [82-85]. In any event, the Board was satisfied that state protection was available based on the Country of Origin Information [86-89]; and the applicant could internally relocate [90-91]. In conclusion, the Board held the applicant’s claim failed under all applicable grounds. It therefore dismissed her appeal and confirmed the Director’s Decision.

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

10.  The applicant has filed Form 86 dated 10 September 2019 for leave to apply for judicial review of the Board’s Decision.

11.  The applicant has raised no specific ground to challenge the Board’s Decision.

DISCUSSION

12.  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).

13.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the applicant simply asked the Court to review the Board’s Decision.

14.  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.”

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

16.  The applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

DISPOSITION

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