MEGUIZO CHARITO MORENO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2211/2019

[2024] HKCFI 3047

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2211 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 19 July 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant requested an oral hearing. She appeared before the Court on 23 October 2024.

The applicant

3.  The applicant, aged 48, is a Filipino. She first arrived in Hong Kong to work as a foreign domestic helper (“FDH”) on 2 July 2011. The applicant was arrested by the police on 6 June 2018 for taking up unapproved employment. She was convicted of the said offence on 20 November 2018 and her employment contract was prematurely terminated on the same day. The applicant made a non-refoulement claim in December 2018. The claim was made on the basis that, if refouled, she would be seriously harmed or even killed by her ex-boyfriend (“Ace’) and his family members.

4.  According to the applicant, she first met Ace in 2002 and they started co-habiting in the latter’s family house in 2003. One day in December 2010, Ace’s stepfather raped her (“the rape incident”). Although the applicant told Ace and his mother about the rape incident, they did not believe her and even told her to keep silent. In January 2011, the applicant sought help from the Minister of the Church, who tried to reconcile the matter. This however angered Ace. He assaulted and threatened to kill the applicant as he felt that she had damaged the reputation of his family. Fearing harm from Ace, she came to Hong Kong to work as a FDH in 2011. In November 2017, when the applicant last returned to the Philippines for vacation, she claimed that she was almost kidnapped and shot.

5.  The applicant last contacted her family in September 2018. She claimed that everyone in her hometown had known about the rape incident, so that Ace and his family would harm her for damaging their reputation upon her return. The applicant was of the view that she could not seek protection from the police because Ace’s family had a strong influence and the police would side with them. She also considered internal relocation not viable because she lacked the necessary financial capability and knew no one elsewhere.

6.  Details of the story of the applicant can be found in paragraph 6 of the Director’s Decision dated 9 April 2019 (“the Director’s Decision”).

The Director’s Decision

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

a. 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”);

b. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”);

c. 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”); and

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

8.  By way of the Director’s Decision, the Director dismissed the applicant’s claims on Torture risk, Persecution risk, BOR 2 and BOR 3 risk. The Director found that: (i) the low intensity and frequency of past ill-treatment from Ace and his family indicated a small future risk of harm upon her return to the Philippines [16]; (ii) it was the applicant’s mere speculation that Ace’s family was involved in the kidnapping and shooting incident in November 2017 [17]; (iii) there was no evidence showing that the Ace’s family was as powerful as she claimed [18]; (iv) state protection would be available [19]-[23] and (v) internal relocation would be viable [24].

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board. On 3 July 2019, the Board conducted an oral hearing.

10.  The Board found that Ace and his family members were not as influential as asserted by the applicant. Given that the claimed ill-treatment failed to reach the requisite level of severity and there was no evidence of state involvement in the matter, the Board rejected the applicant’s claim on Persecution risk, Torture risk, BOR 2 and BOR 3 risk. In any event, the country of origin information also showed the availability of state protection and internal relocation [16]-[55].

11.  The Board therefore dismissed the applicant’s appeal and confirmed the Director’s Decision.

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

12.  The applicant has filed Form 86 dated 2 August 2019 for leave to apply for judicial review of the Board’s Decision.

13.  The applicant has raised the grounds below in support of her application.

(1) The hearing bundle was given to her shortly before the Board hearing and the documents are in English. She could not afford an interpreter. She did not have enough time to prepare for the appeal and she was confused. However, she was able to answer all the questions put to her by the Board.

(2) The Board relied upon the source of news which is not officially recognized or is simply hearsay. It had also relied on the outdated information, therefore it had made speculation that it is safe for her to return to her country.

DISCUSSION

14.  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).

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

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 Board had given its reasons for rejecting the applicant’s claim. See paragraphs 45-51 of the Board’s Decision.

18.  As to the grounds under paragraph 13, they are not valid to challenge the Board’s Decision. There was no application before the Board that she did not have enough time to prepare for her appeal. She did not asked for an adjournment. She was able to answer the questions put to her. Ground (2) is only her bare assertion without any evidence in support.

19.  There is no valid reason that this Court should interfere with the Board’s finding of the facts.

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

DISPOSITION

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