RAMOS EDELYN RODRIGUEZ v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3187/2019

[2025] HKCFI 2820

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 3187 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 17 October 2019 of the Decision Torture Claims Appeal Board dated 17 October 2019 (“the Board’s Decision), dismissing her appeal against the Director’s Decision reject her non-refoulement claim as described below.

2.  The applicant requested an oral hearing. However, she was absent at the hearing on 28 May 2025. I shall deal with her application on the papers.

The applicant

3.  The applicant, aged 34, is a national of Philippines. On 31 January 2018, the applicant arrived to Hong Kong as a domestic helper but when her contract was prematurely terminated, she overstayed since 14 January 2019. The applicant was arrested on 8 April 2019, and in due course, she lodged her non-refoulement claim.

4.  The applicant’s claim was based on her fear of being harmed or killed by her husband Jayson and the rapist and their group.

5.  According to the applicant, she was assaulted by her husband in two incidents. In 2016, the applicant was taken by her husband to barter for drugs. Details of her claim are set out at paragraph 6 of 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: there were no real and substantial risk that she would be subjected to any serious harm or ill-treatment and that the applicant did not seek protection as soon as she overstayed in Hong Kong in January 2019 [12-15]; state protection was available [16-23]; and internal relocation alternatives were available and reasonable [24-28].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board. On 27 September 2019, the Board conducted an oral hearing for her appeal, during which the Board took evidence in relation to the applicant’s claims [37-38].

9.  Having considered the evidence, the Board found the evidence given by the applicant unbelievable and conflicting [39]. In any event, the Board found that the applicant’s problem was by nature a domestic dispute [55, 66] and the applicant had many viable alternatives of internal relocation [47-49]. In conclusion, the Board held that 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 28 October 2019 for leave to apply for judicial review of the Board’s Decision. The applicant stated the grounds in support of her application, which, insofar as the Board is concerned, are summarized as follows:

(1) the Board’s Decision is wrong as it is not fair;

(2) the Board has placed too much reliance on the country of origin information, without taking into consideration of her personal background;

(3) the adjudicator was unfair in the assessment of the evidence and it had unreasonably demanded her to answer questions that she was not in a position to respond; and

(4) the adjudicator failed to take into account the nexus of political parties and official corruption that exist in her country, making the persecution effective by the receiving state.

11.  The applicant did not elaborate the above reasons in her affirmation in support of her application.

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.

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.  As to the grounds in paragraph 10, they do not advance the applicant’s application. They are her personal views or bare assertions without any evidence in support.

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

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.