HCAL 1688/2019
[2024] HKCFI 1514
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1688 of 2019
| BETWEEN | | |
| Corpuz Wilma Castillo | Applicant |
| and | |
| Torture Claims Appeal Board/
Non-refoulement Claims Petition Office | Putative Respondent |
| and | |
| Director of Immigration
| Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge K.W. Lung:
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 12 June 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”), a hearing date of 6 May 2024 was fixed for her. However, she was absent without 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 42, is a Filipino. She last arrived in Hong Kong to work as a foreign domestic helper on 13 September 2013. Her contract was pre-maturely terminated on 2 October 2014 and she overstayed since 17 October 2014. The applicant surrendered to the Immigration Department on 3 November 2015 and made a non-refoulement claim on 7 July 2016. The claim was made on the basis that, if refouled, she would be in danger, as she would have to live in the same house with her stepfather who attempted to rape her.
5. According to the applicant, when she was one year old, her father passed away and her mother married her stepfather in about 1996. The applicant got married in 2011, having one daughter and three sons with her husband. They stayed in a house bought by the applicant together with the applicant’s mother and stepfather.
6. One day in about August 2011, the applicant’s stepfather came into her bedroom and pushed her towards her bed. He then groped her breasts after removing her top and bra. When he tried to remove her trousers, she struggled and screamed for help, which scared her stepfather away.
7. The applicant told her mother about the incident, who advised her to report to the police. Subsequently, her stepfather was arrested and sentenced to imprisonment for 6 months. To avoid further contact with her stepfather, the applicant decided to come to Hong Kong for work.
8. The applicant maintained contact with her children in the Philippines and was informed that her stepfather continued to live in the applicant’s house after he had been released from prison.
9. The applicant admitted that she could seek protection from the police in the Philippines. However, she considered internal relocation not viable due to lack of financial resources.
10. Details of the applicant’s story can be found in paragraph 8 of the Director’s Decision dated 27 December 2017 (“the Director’s Decision”).
The Director’s Decision
11. 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”).
12. By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that (i) there were no substantial grounds to believe that her claimed risk of harm from her stepfather was real and foreseeable [15]-[16]; (ii) state protection would be available to her upon her return [18]-[23]; (iii) internal relocation would be viable [17], [24]-[25] and (iv) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [26]-[31], Persecution risk [32]-[36] or Torture risk [37]-[40].
The Board’s Decision
13. The applicant appealed the Director’s Decision to the Board. On 6 March 2019, the Board conducted an oral hearing.
14. During the hearing, the applicant claimed that her stepfather was released from prison in August 2011 [50] while the attempted rape happened in January or February 2011 [57]. Thereafter, he threatened to kill her because he could not accept that she reported him to the police [51]-[52].
15. The Board found the applicant’s explanation for the significant delay in surrendering and seeking protection to be unconvincing [54]. It 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 [74]. Regarding the applicant’s claims, the Board noted inconsistencies about the dates and related circumstances of the attempted rape as well as the imprisonment and release of her stepfather [75]. The Board also considered it not credible that she would allow her stepfather to live at her home while she left to work overseas [76].
16. The Board were of the view that the applicant was not a credible witness [79]. It did not accept the applicant’s claims that her stepfather attempted to rape her, after which he was imprisoned. It also did not accept that she was death threatened by her stepfather because she reported him to the police [80].
17. 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], [82]-[98]. In any event, state protection and internal relocation were also available to her according to the country of origin information [27], [65]-[68].
18. 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
19. The applicant has filed Form 86 dated 19 June 2019 for leave to apply for judicial review of the Board’s Decision.
20. In the affidavit in support of her application, the applicant said that the Board had disregarded her dangerous situation.
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 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).
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. The Board did not accept the applicant’s evidence on the facts of her claim. It also found that her case, on the assumption that her evidence was acceptable, failed to meet the requirements of the applicable risks. On the alleged facts of the case, the Board’s view cannot be faulted.
25. The applicant fails to raise any valid ground to challenge the Board’s Decision.
26. The applicant therefore fails to show that she has realistic prospect of success in her proposed judicial review of the Board’s Decision.
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.
Dated the 4th day of June 2024
| | (Allen LEE)
for Registrar, High Court |
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
Notesfor the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
| | | | |
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
| | Sent to the Applicant
on 4/6/2024
Corpuz Wilma Castillo
Applicant’s ref. no:
Nil.
| | Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 4/6/2024
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 9822/18/1/98/F525
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 3350/17 (Formerly RBCZ 12517/16)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
|
Form CALL-1