REVILLA WILMA ANOSA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3098/2019

[2025] HKCFI 2433

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 3098 OF 2019

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J U D G M E N T

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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 Torture Claims Appeal Board (“the Board’s Decision).

2.  The applicant requested an oral hearing. She appeared before the Court on 16 May 2025.

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 Philippines and last arrived in Hong Kong on 23 January 2019 as a domestic helper. Her employment contract was prematurely terminated on 26 February 2019 but she did not depart and overstayed since 13 March 2019. She surrendered to the Immigration Department on 18 March 2019 and in due course, the applicant lodged her non-refoulement claim.

5.  The applicant’s claim was based on her fear of being harmed or killed by a moneylender because of her default in loan repayment.

6.  According to the applicant, in or around January 2019, she had drawn down a loan of about 300,000 pesos from her partner’s friend at 5% monthly interest, but did not sign any loan agreement. In or around February 2019, her partner told the applicant that the moneylender was angry and threatened to kill him if she did not repay the loan. The applicant found out that her partner had spent the money on drugs instead of the repayment of the loan. Details of her claim are set out at paragraph 7 of the Notice of Decision dated 10 July 2019 by the Director (the “Director’s Decision”).

The Director’s Decision

7.  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”).

8.  By way of the Director’s Decision, the Director assessed the applicant’s claim on all applicable grounds and dismissed her claim. In summary, the Director found that there was no substantial grounds for believing that the applicant would be in danger of being harmed or killed by her moneylender and the real intention was to demand the applicant and her partner to repay their loan [13]; that reasonable state protection was available [14-19]; and that internal relocation alternatives were available and reasonable [20-21].

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board. On 24 September 2019, the Board conducted an oral hearing for her with an interpreter.

10.  Having considered the evidence, the Board rejected all the claims that the applicant would be at risk of harm from the moneylender [84]. In any event, having considered the Country of Origin information [64], the Board found that there was no indication that the applicant would not be afforded the requisite level of state protection [96]. In conclusion, the Board held 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

11.  The applicant has filed Form 86 dated 21 October 2019 for leave to apply for judicial review of the Board’s Decision. The applicant included grounds which are summarized as follows: the Director’s and Board’s Decisions were not reasonable and not fair; there was a failure to consider state acquiescence; excessive reliance on country of origin information; and the Board failed to attain a high standard of fairness.

12.  In the applicant’s affirmation in support of her application, the applicant did not elaborate further on her grounds referred above.

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 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).

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 said that the Board was not wrong in its decisions. In view of this admission, the grounds under paragraph 11 have become insignificant.

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.  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.