FONTANILLA MARIANNE CUNANAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1779/2019

[2024] HKCFI 2226

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1779 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 15 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant requested an oral hearing. However, she was absent at the hearing on 8 July 2014 without any prior notice to the Court. I shall deal with her application on paper.

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 44, is a Filipino. She last arrived in Hong Kong as a visitor on 8 March 2015 and overstayed since 23 March 2015. The applicant surrendered to the Immigration Department on 17 April 2015. She was convicted for overstaying on 18 September 2015 and was sentenced to imprisonment of seven days suspended for three years. The applicant made a non-refoulement claim on 25 November 2015 and 4 December 2015. The claim was made on the basis that, if refouled, she would be seriously harmed or even killed by members of a drug syndicate because she witnessed them murdering her cousin.

5.  According to the applicant, her cousin was both a drug addict and dealer. At around 5pm on 1 January 2014, while the applicant was at her cousin’s home, four unknown men with their faces covered with balaclava came. She then saw one of the men fired a shot at her cousin, who died immediately (“the shooting incident”). The applicant and her cousin’s children immediately fled to the house of her cousin’s parents next door. She believed that her cousin was killed because she failed to return the profit she made from drug trafficking to the drug syndicate.

6.  The applicant went back to her home the next day. For the next two months, there were 2-6 motorcycles wandering around her house during early morning every day. The applicant was also informed by her cousin’s parents that there were motorcycles wandering around their home and their neighbours were harassed to disclose her identity as well as her whereabouts. Upon advice from her family, the applicant relocated to Manila to stay with her aunt after two months.

7.  While in Manila, the applicant was informed by her relatives that members of the drug syndicate were still after her. The police was also looking for her, as they wanted her to be the witness of the shooting incident. As the applicant did not want to get involved in the matter, she refused to contact the police. Eventually, she departed the Philippines for Hong Kong on 8 March 2015.

8.  The applicant last contacted her family in early 2018, but they did not provide her with updates regarding the shooting incident. She considered internal relocation not viable because the drug syndicate had a widespread network in the Philippines, so that it would only be a matter of time for them to locate her. Meanwhile, the applicant had never approached the police for assistance because she did not want to get involved and be a witness for the shooting incident. She also believed the police were corrupt and she could not afford bribing them.

9.  Details of the story of the applicant can be found in paragraph 7 of the Director’s Decision dated 23 March 2018 (“the Director’s Decision”).

The Director’s Decision

10.  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”).

11.  By way of the Director’s Decision, the Director dismissed the applicant’s claims. The Director found that: (i) the past behaviour from members of the drug syndicate indicated the risk of harm was not as imminent and foreseeable as she claimed [15]-[16]; (ii) state protection would be available to her [17]-[20]; (iii) internal relocation would be viable [21]-[23] and (iv) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [24]-[29], Persecution risk [30]-[34] or Torture risk [35]-[37].

The Board’s Decision

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

13.  The Board considered that the applicant’s delay in seeking protection was due to her wish to remain in Hong Kong rather than fearing harm if she returned to the Philippines [72]. Her explanation for the delay was found by the Board to be unconvincing, given her familiarity towards Hong Kong and her claimed reasons for coming here [89].

14.  Meanwhile, the applicant was unable to provide any independent corroboration to support aspects of her claims apart from the death certificates of her cousin [90]. The fact that the applicant was able to remain in the Philippines for 14 months after the shooting incident without being harmed nor located was also at odds with her claim that she was being pursued by members of the drug syndicate or the police [95].

15.  The Board did not accept the applicant to be a credible witness [97]. It was not accepted that the applicant feared harm from a drug syndicate or that the police were in search of her to be a witness regarding the shooting incident. The Board also rejected her claim that she witnessed the happening of the shooting incident and that she left the Philippines to avoid harm from the drug syndicate [98].

16.  The Board concluded that the applicant’s case failed to meet any of the requirement under Torture risk, BOR 2 and BOR 3 risk or Persecution risk [8]-[26], [28]-[33], [100]-[117]. In any event, state protection and internal relocation would also be available to her according to the country of origin information [27], [83]-[84].

17.  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

18.  The applicant has filed Form 86 on 26 June 2019 to apply for leave to apply for judicial review of the Board’s Decision.

19.  In her affidavit in support of her application, the applicant had only attached a copy of the Board’s Decision without raising any specific ground

DISCUSSION

20.  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).

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

22.  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.”

23.  For the reasons above, the Board rejected the applicant’s evidence in support of her claim. It further found that state protection is available to her and internal relocation is a viable option for her.

24.  The applicant has not raised any valid reason to challenge the Board’s Decision.

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

CONCLUSION

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