CUTCHON FRANCISCA VILLASENOR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1382/2019

[2024] HKCFI 975

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1382 of 2019

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 Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 8 May 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 did not turn up at the hearing before the Court. I shall deal with her application on the papers.

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 56, is a Filipino. She arrived in Hong Kong as a visitor in August 2010. She overstayed since 1 September 2010 and was arrested by the police on 29 September 2010. She made a torture claim on 11 October 2010, which was rejected on 28 June 2013. The applicant appealed the Director’s Decision (“the Director’s 1^st Decision”) to the Board, but was refused because it was made out of time. On 26 July 2013, the applicant made a further non-refoulement claim on all applicable grounds other than torture risk[1]. The claim was made on the basis that, if refouled, she would be harmed or killed by her husband. She was also worried that something bad would happen to her due to her failure to repay loan to her creditors.

5.  According to the applicant, she got married in 1989. After around two years of marriage, her husband began assaulting her frequently, especially when he was drunk. The applicant self-treated her wounds as she claimed that there was no hospital nearby and she could not afford medical care. She also did not seek help from her neighbours nor any public organization. In 1998, the applicant went to work in Taiwan. As she got pregnant during a vacation in the Philippines, she did not return to Taiwan. In 2009, she worked in Saudi Arabia for six months. Upon her return to the Philippines, she opened a small store in Manila. About a week later, her husband came to the store to assault her and damaged her business stock. She had no choice, but to return home with her husband. In 2010, the applicant could no longer tolerate the domestic violence from her husband. She therefore left the Philippines and came to Hong Kong in August 2010. While in Hong Kong, the applicant had a religious marriage with a Pakistani and she gave birth to a son in Hong Kong on 9 August 2012.

6.  In the torture claim, the applicant claimed that the money for travelling to Hong Kong was borrowed from her sister-in-law while in the non-refoulement claim, she claimed it was borrowed from a friend of her good friend/neighbor. She further stated in the non-refoulement claim that since she failed to make any repayment of the loan after she came to Hong Kong, her friend warned her that something bad would happen to her if she returned to the Philippines.

7.  The applicant claimed that her husband was convicted of murdering someone with a knife before she met him, which she only knew around a year after their marriage. In 1993, her husband murdered another person with a gun due to a money dispute. The applicant also stated for the first time in her non-refoulement claim that her husband committed a third killing in early April 2016 by murdering her distant cousin after he was unsatisfied with the cousin’s job arrangement given to his son.

8.  The applicant maintained contact with her children after her arrival in Hong Kong. She was warned not to return to the Philippines, otherwise her husband would kill her as well as her child and his father in Hong Kong.

9.  The applicant was of the view that she could not seek protection from the police because she had no money to bride them. She also claimed for the first time in her non-refoulement claim that her husband’s paternal uncle was the leader of New People’s Army having widespread network within the country, so that relocating to other places within Philippines is not viable as she could easily be found. Further, she also did not want to relocate away from her siblings.

10.  Details of the applicant’s story are set out in paragraph 8 of the Director’s Decision dated 25 June 2018 (“the Director’s 2^nd Decision”).

The Director’s Decision

11.  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”); and

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”).

12.  By way of the Director’s 2^nd Decision, the Director dismissed the applicant’s claim. The Director found that there was no real risk that the applicant would suffer any harm upon her return to Philippines. Her fear that she would be harmed by her husband was merely her own speculation without any evidence in support. As to the loan, the Director had doubts about the credibility of the applicant given the different versions provided in the torture claim and the non-refoulement claim. In any event, the Director failed to see any intention from the creditor to harm or kill the applicant [14]-[19].

13.  Furthermore, the Director was of the view that (i) state protection will be available to her upon her return [20]-[24]; (ii) internal relocation is viable [25]-[26] and (iii) the applicant’s case failed to meet any of the requirement under BOR 2, BOR 3 risk [27]-[32] or Persecution risk [33]-[37].

The Board’s Decision

14.  The applicant appealed the Director’s 2^nd Decision to the Board on 13 July 2018, which was made out of time for two working days. Although this was the second occasion which the applicant made an appeal out of time and that the Board was not satisfied with her reasons for the late filing, given that the appeal was made only two working days late, the Board allowed the applicant’s late filing and proceed to consider her appeal [10]-[20]. On 24 January 2019, the Board conducted an oral hearing with an interpreter.

15.  Although the Director’s 2^nd Decision did not deal with the Torture risk, the Board considered that the non-refoulement claim included matters that arose only after the torture claim and hence had not been considered in the Director’s 1^st Decision, i.e. the source of the loan, the third killing by the applicant’s husband and that his paternal uncle was the leader of New People’s Army. In addition, it also appeared that the Director did not take into account section 37ZO(2) of the Ordinance concerning grounds for making subsequent claims as the Director’s 2^nd Decision did not include a written notice of such effect pursuant to section 37ZO(5) of the Ordinance. The Board therefore assessed the applicant’s appeal based on Torture risk as well [21]-[23].

16.  Having considered the applicant’s evidence, the Board formed the view that the she had exaggerated the threat her husband posed to her. The Board did not accept claims concerning the killings by her husband, death threat made to her as well as the connection between her husband with the New People’s Army. Given that there had been an elapse of time since the applicant left the Philippines in 2010 and that she neither had contact with her husband nor knew his whereabouts, the Board considered that the applicant only faced a remote rather than a real risk of being harmed by her husband upon her return to the Philippines. The Board also found that the applicant never took any loan and hence faced no real risk of being harmed by her creditors upon her return to the Philippines [47]-[60].

17.  In any event, the Board found that the applicant’s case failed to meet any of the requirement under Persecution risk [31]-[33], [63]-[65], BOR 2, BOR 3 risk [34]-[38], [66]-[69] or Torture risk [39]-[42], [70]-[71].

18.  For the above reasons, the Board dismissed the applicant’s appeal and confirmed the Director’s 2^nd Decision.

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

19.  The applicant has filed Form 86 dated 22 May 2019 for leave to apply for judicial review of the Board’s Decision.

20.  In her affirmation in support of her application, the applicant said that the Board’s Decision is not satisfactory and she will present new proofs at the hearing before the court.

DISCUSSION

21.  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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

23.  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.”

24.  Having considered the evidence, the Board had made the conclusion:

“60. I have considered the claims of the Appellant individually and cumulatively, as well considering the personal circumstances of the Appellant. On the credible evidence before me, I do not consider the Appellant faces a real risk of Proscribed Harm from Mr G, the NPA, Mr E and/or Mr N if the Appellant is refouled to the Risk State.”

25.  The applicant has raised no valid reason to challenge the Board’s Decision and there is no ground for this court to interfere with it.

26.  The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.

CONCLUSION

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