ABUYEN ALONA DOMINGO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1704/2019 [2024] HKCFI 1905

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1704 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 present 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 31 May 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant did not request an oral hearing.  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 49, is a Filipino.  She arrived in Hong Kong to work as a foreign domestic helper on 29 October 2015. Her employment contract was prematurely terminated on 18 May 2016 and she overstayed since 3 June 2016.  The applicant surrendered to the Immigration Department on 6 July 2017 and made a non-refoulement claim on 11 December 2017.  The claim was made on the basis that, if refouled, she would be harmed or killed by the owner of her previous employment agency (“agency owner”).

5.  According to the applicant, she entered into an employment contract through an agency to work in Malaysia in 2011.  Subsequently, 11 people including the applicant were arranged to go to Malaysia.  Upon arrival in Malaysia, they discovered that their employers named in the contracts were not their employers and the agency had not yet found any employment for them.  The agency refused their request for return tickets to the Philippines and threatened them not to leave Malaysia. The agency even lodged a complaint at the Immigration Department of Malaysia.  As a result, the applicant was arrested for illegal recruitment and was detained for around four months.  She was released after the investigation, after which she went back to the Philippines.

6.  A month later after returning to the Philippines, the applicant reported the case to the National Bureau of Investigation (“NBI”), which told her to first contact other victims.  As she failed to do so, the NBI did not take any further action.  After around five months, the applicant encountered one of the victims (“Grace”) and told her that she had reported the agency owner to the NBI.  Later, Grace informed the applicant that she told the agency owner about her complaint and the agency changed its name.  Grace also warned the applicant that the agency owner had threatened to kill her if she continued pursuing her complaint against him.  

7.  Out of fear, the applicant decided to relocate within the Philippines.  Subsequently, as she still feared to be located by the agency owner in the long run, she arranged her visa for Hong Kong and the trip through another agency.  Eventually, she arrived in Hong Kong in October 2015.  

8.  While the applicant was still in the Philippines before departing for Hong Kong, she came across the agency owner’s assistant once, who apologised to her about what happened in Malaysia.  Since arriving in Hong Kong, the applicant maintained contact with her family, but they had no updates on the agency owner.  The applicant had never reported the matter to the police as she was not confident that they would render assistance to her.  She also considered internal relocation not viable because the agency owner could still find her through his extensive network given that he was rich and powerful.

9.  Details of the applicant’s story can be found in paragraph 7 of the Director’s Decision dated 11 October 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 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”).

11.  By way of the Director’s Decision, the Director dismissed the applicant’s claim.  The Director was of the view that (i) the absence of past ill-treatment from the agency owner indicated her perceived risk of harm was not as imminent and substantial as claimed [13] - [14]; (ii) state protection would be available to her upon her return [15] - [19]; (iii) internal relocation would be viable [20] - [21] and (iv) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [22] - [27], Persecution risk [28] - [32] or Torture risk [33] - [35].

The Board’s Decision

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

13.  During the hearing, the applicant claimed to have received a message from the agency owner’s assistant after she lodged a case with the NBI, who told her that something bad would happen to her if she continued pursuing her complaint [14] - [19].  The applicant also gave inconsistent evidence regarding her encounters with Grace [22] - [25].   

14.  The Board accepted that the applicant might have been misled by the agency owner and therefore have entered Malaysia without employment and was detained in Malaysia [31].  However, the Board had concerns with the applicant’s credibility regarding her claimed risk from the agency owner because it did not believe that the applicant would travel overseas alone, leaving her children behind in the Philippines and to remain in the Philippines for four years (from 2011 until she came to Hong Kong in 2015) knowing that her life was at risk.  In any event, the applicant’s evidence regarding the agency owner, Kelvin was very limited [32] - [33].  Her evidence about her encounters with Grace was also internally inconsistent [34] - [37].

15.  Based on such findings, the Board did not accept the applicant’s claim that she faced an ongoing threat from the agency owner [38].  It concluded that the applicant’s case failed to meet any of the requirements under Persecution risk [42] - [48], BOR 2 and BOR 3 risk [49] - [57] or Torture risk [58] - [62].  The applicant’s appeal was therefore dismissed and the Director’s decision was confirmed.

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

16.  The applicant has filed Form 86 on 20 June 2019 to apply for leave for judicial review of the Board’s Decision.

17.  In her affidavit in support of her application, the applicant did not raise any specific ground.

DISCUSSION

18.  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).

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

20.  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.”

21.  The Board did not believe the applicant’s evidence for the reasons given above.  Therefore, the Board did not consider state protection for the applicant or internal relocation.  The applicant has not raised any valid reason to challenge the Board’s Decision.

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

CONCLUSION

23.  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