CARIAGA RAQUEL LOR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1380/2019

[2024] HKCFI 641

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1380 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 15 May 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant requested an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), she attended the Court’s hearing on 31 July 2023.

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 is a national of the Philippines.  She last arrived in Hong Kong on 14 April 2013 and was employed as a domestic helper until 30 December 2014.  Her contract was prematurely terminated on 13 December 2014.  She did not depart and overstayed.  She was arrested by police on 16 December 2014 for theft and was sentenced to three months’ imprisonment.   Upon her release from incarceration and transfer to the Immigration Department for detention, she raised a non-refouelemnt claim on 1 April 2015 on the basis that she will be harmed or killed by a creditor due to an outstanding debt if she is refouled to the Phillippines.

5.  The facts of her story are briefly stated. In around 2009, the applicant took out a loan (an amount she is unable to recall) from a money lending company to defray her father’s medical costs.  In order to garner additional income, she obtained another loan in 2010 to pay an agency for obtaining overseas employment.  According to the applicant, she believed she borrowed about 750,000 pesos for the second loan.  She arrived in Hong Kong in the same year to work as a domestic helper and returned to the Philippines once in around late March 2013.  Whilst she was employed, she was making payment to her creditor.  As such, there was no threats nor violence to her or her family. However, as she was arrested subsequently and incarcerated, she stopped repaying her creditor.  Upon her release, the applicant’s friend (Melissa) informed her that creditor had sent some men to the applicant’s house in the Philippines to locate her.  They demanded repayment of the loan and threatened to kill her if she failed to pay.  When Melissa came to Hong Kong for a visit, she suggested to the applicant not to return home as the creditor may try to assault her.  She therefore decided not to remain in Hong Kong.  From 2015 to late January 2018, she was told by her mother that the creditor continued to seek the applicant’s whereabouts and assaulted her brother on four different occasions.  Her mother therefore also suggested to the applicant not to return to the Philippines and remain in Hong Kong.  Details of her claim are set out at [8] of the Notice of Decision dated 26 September 2018 by the Director (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 dismissed the applicant’s claim.  In elaboration, the Director found that: (i) her adduced evidence did not establish substantial grounds to believe that there would be a real or foreseeable risk upon her return, due to the absence of past ill-treatment inflicted; and on her own facts, she was never physically assaulted by the creditor [18] – [20]; (ii) even if on the assumption that the creditor is attempting to kill her, there was no evidence that the creditor could locate her everywhere in the Philippines [21]; (iii) state protection from the Filipino government would be available to her [24] – [26]; and (iv) internal relocation was a viable option [27].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board.  On 13 December 2018, the Board conducted an oral hearing for her appeal, during which she elected to give evidence. 

9.  Whilst the Board was willing to accept the factual matrices of the applicant’s claim, namely that she had indeed obtain a loan and the threats by the creditor thereafter due to her default on repayment, it was not satisfied that she would face a real chance of serious harm or a real risk of significant harm if refouled [67] – [71].  There was no evidence of state involvement or state acquiescence in this case [78].  Having considered the country of origin information (“COI”), the Board was satisfied there was adequate state protection to the applicant and her family if she returned to the Philippines [80].  Further to that in relation to Persecution Risk, the Board also found she does not have a well-founded fear of persecution as COI indicated there were adequate protection measures and the option of internal relocation was available to her.  [84] – [89] Based on her evidence, the Board was not satisfied her ground under Torture risk was proven as there was no indication she was subjected to severe pain or suffering, physically or mentally [90]. Lastly, the Board found that there was no evidence to substantiate her claim under BOR 2 and BOR 3 risk [95] and [96].

10.  For the above reasons, the Board dismissed the applicant’s appeal and confirmed the Director’s Decision.

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

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

12.  The applicant has raised the grounds below in support of her application.

(1)  Procedural impropriety: failure to properly apply para. 2 of the UN committee against Torture General Comment No. 2; failure to conduct sufficient enquiry into the relevant country of origin conditions; failure to give sufficient reasons on BOR 3 risk; and failure to consider her fear and the loan shark would harm her.

(2)  Error/misdirection in law: failing to take into account the consideration of psychological strain and threats to her personally or threats to her directly to kill her.

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

14.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.  Before me, the applicant confirmed that she understood the Board’s Decision and she was free to state her case before the Board.  She further said that she did not think that the Board was wrong in its decisions, but she wanted to stay here because she was unable to pay her loan.

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.  For the reasons given in paragraph 9, the Board rejected her evidence.

17.  The grounds under paragraph 12 do not assist her.  They are bare allegations or her opinions without any evidence in support.  The Court of Appeal in Salim Ahmed alias MD Salim [2020] HKCA 244 held:

“20. … … general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case: Re Mizan Sikder [2019] HKCA 20 and Ibrahim v Simon Russell [2019] HKCA 1327.” See also Re Haider Khalil [2021] HKCA 223 [16].”

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

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

CONCLUSION

20.  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