ESPELITA JHOANNIE JEAN TOLOSA AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2699/2018

[2021] HKCFI 3232

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2699 of 2018

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 Applicants:

THE APPLICATION

1.  The applicants are mother and daughter, who was born on 8 December 2016 and is now about 4 years old.  I shall refer to the first applicant as the applicant and the second applicant as applicant daughter, unless otherwise stated below.

2.  The applicants jointly apply for leave to apply for judicial review of the Decision dated 21 September 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).  The applicant daughter’s case relies upon the facts of the applicant.

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 Board is the proposed respondent and the Director of Immigration (the “Director”) is the interested party.

The applicants

4.  The applicant is a citizen of the Philippines.  She came to Hong Kong to work as a domestic helper in October 2012.  Her employment contract was terminated prematurely.  She overstayed.  On 2 September 2016, she surrendered to the Immigration Department and lodged non-refoulement claim on by way of written signification dated 13 October 2016 and 3 November 2016.

5.  The applicant claimed that if refouled, she and her daughter would be harmed or killed by her former live-in partner, called Kim.  She also feared the political instability in the city where she lived.

6.  She and Kim are not married.  She came to Hong Kong as a domestic helper.  Kim supported her and lent her money for the agency fee.  But he warned her not to have affairs with another man in Hong Kong or he would kill her.  She fell in love with another man in Hong Kong and she gave birth to the applicant daughter.  Kim knew about it and he threatened her that he would kill her if she returned to the Philippines.  Her relatives and family would not accept her daughter because she was an illegitimate child and she would be subjected to ridicule by other people at the locality.  Recently, she heard news that the President had declared a state of martial law in the region where she lived.  Details of her story are set out in paragraph 7 of the Director’s Decision described below.

The Director’s Decision

7.  The Director considered their application in relation to the following risks:

 i.     risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

 ii.     Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);

 iii.     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

 iv.     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”).

8.  By Notice of Decision dated 31 July 2017 (the “Director’s Decision”), the Director refused their claim for the reason that their claim was not substantiated.  The Director found that there were no substantial grounds for believing that there would be any real and substantial risk of her and her daughter being harmed or killed by Kim [13]; that state protection was available to them [18] and that internal relocation was an option open to them [24].

The Board’s Decision

9.  The applicants appealed to the Board against the Director’s Decision.  At the hearing, the applicants were represented by Miss Bina D. Sujanani, duty lawyer and the Director was represented by Miss Jenny PS Cheung, government counsel.

10.  For the reasons set out in the Board’s Decision, the Board, rejected her and her daughter’s appeal and affirmed the Director’s Decision.  The Board found:

 i.     for the reasons stated in §34, the applicant’s evidence was contradictory and not reliable;

 ii.     it did not accept that Kim would kill her and her daughter [26 & 27];

 iii.     it did not accept that the political instability would cause danger to her or her daughter as her family are still residing there and safe [29];

 iv.     it would be unreasonable for the applicant to demand guarantee of her and her daughter’s safety from her own government [30];

 v.     that the submission of terrorist was just a bare allegation and a mere speculation that it might affect the applicant daughter [32]; and

 vi.     the applicants had not made out a case in respect of each of the 4 grounds for their claim [36].

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

11.  The applicants filed Form 86 on 28 November 2018 for leave to apply for judicial review of the Board’s Decision.

12.  In the applicant’s affidavit in support of their joint application, the applicant said that she was not satisfied with the Board’s Decision because it was not safe to return to her own country.  There was no guarantee that she and her daughter would live with no harm or discrimination, which would affect her daughter emotionally as she was born as an illegitimate child.  The ISIS terrorists had made bomb attack.  They are quiet now.  But there is no assurance when they will not attack again.

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, CA. §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

14.  The Court will bear in mind that the Board’s Decision 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 in support of this application do not assist the applicants.  The Board is right to point out that according to Horvath v. Secretary of State for the Home Department [2001] 1 AC 489 at 500 F-H, the standard of state protection required is one of a practical standard, taking into account the state’s duty to establish and to operate a system of protection against persecution of its own nationals.  It is not required that the state should provide protection that would eliminate all risks and amount to guarantee of protection.  There is no evidence to show that internal relocation would not be possible or too harsh for her and her daughter. 

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.  There is no evidence that shows that the applicants have any realistic prospect of success in their intended judicial review.

CONCLUSION

19.  I therefore refuse to grant leave for the applicants to apply for their intended judicial review.  Accordingly, I dismiss their 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