Biano Lydia Mogeyeng v. Torture Claims Appeal Board

HCAL 240/2017

[2018] HKCFI 89

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No.240 of 2017

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Order by the Honourable Madam Justice Toh:

Leave to apply for Judicial Review refused.

Observations for the applicant:

1.The Director of Immigration (“the Director”) dismissed the applicant’s non‑refoulement claim.  The Torture Claims Appeal Board (“TCAB”) dismissed the applicant’s appeal against the Director’s determination.  This is an application for leave to apply for judicial review against the TCAB’s decision.

Background

2.The applicant is a Filipino nation who first arrived in Hong Kong on 28 June 2002 as a visitor.  She overstayed illegally for four months, then surrendered to the Immigration Department on 22 November 2002 and was repatriated to the Philippines on 4 December 2002.  The applicant came to Hong Kong again on 14 February 2009 by using false passport and then overstayed, until arrested by the police on 14 November 2011.  Two weeks later, she made different representations to the Director of Immigration seeking non‑refoulement.

3.In support of her non‑refoulement claim, she said she feared of being harmed or killed (1) by a failed politician, Mr Belino Soni‑en (“BS”) because she had embezzled 35,000 Pesos which was given to her for distribution to bribe voters during the election for a Mayor in 2001; and (2) by a drug boss (“DB”) because she had been trafficking in cannabis and marijuana for him from 2002 to 2007, but had decided to quit which he did not allow her to do.  In relation to the first matter, she said that she had imbursed the money because she was poor and when BS lost the election, BS had arranged for people to kill her and her friend informed her about the plot.  To avoid BS, she moved to stay with her uncle in Cavite where she lived for over a year before coming to Hong Kong in 2002. After returning to the Philippines in December 2002, she was living in Baguio City and due to a poor financial circumstances, she started trafficking in drugs for DB.  She claimed that she wanted to quit in 2003 but DB threatened her with death if she did.  She said that in her most recent telephone conversation with her brother in December 2015, he told her that BS and DB was still making enquiries about her.

4.The Director in considering her claim under three grounds:

(1) risk of Torture of Cruel, Inhuman or Degrading Treatment or Punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance Cap 383 (BOR 3 risk);

(2) risk of lost of life under Article 2 of section A of the Hong Kong Bill of Rights Ordinance Cap 383 (BOR 2 risk); and

(3) risk of Persecution (Persecution risk) with the reference to the non‑refoulement principle under Article 33 of 1951 Convention relating to the status of refugees and its 1967 Protocol; and

(4) risk of torture as designed in Part VIIC of the Immigration Ordinance Cap 115 (“Torture risk”).

5.The Director refused the applicant under the above head on 20 June 2016 and as for her BOR 2 risk claim that was dismissed on 23 January 2017.  The applicant filed an appeal to the TCAB/Non‑Refoulement Claim Petition Office on 24 June 2016.

TCAB’s decision

6.After an oral hearing, where the applicant chose to remain silent, the Adjudicator found that even if the applicant’s assertions were true that BS and DB were still looking for her, it was not only hearsay but made over a year ago.  The Adjudicator found that the claim under torture risk failed.

7.The Adjudicator also found that under the BOR 3 risk, the applicant had not suffered any injury within the criteria of cruel, inhuman or degrading treatment or punishment (“CIDTP”) and found those substantial grounds that she would save as further risk of previous harm.  And that the applicant could live in the Philippines other than Baguio City from when she claimed.  So in the end he found that there was no risk under the BOR 2 or BOR 3 and furthermore he found that persecution risk was not established.

8.The Adjudicator also found on the issue of credibility that the applicant did not raise any claim when she landed in Hong Kong in 2002 nor again in 2009 but decided to overstay her visa in Hong Kong.  She also applied to the United Nations High Commissioner for Refugees (“UNHCR”) for refugee status in 2011 but did not consent for the information she had provided to them to be disclosed through the Director as she claimed she wanted to keep it confidential, the Adjudicator in the TCAB considered that act of the applicant should be perplexing.  The applicant was granted in oral hearing before the Adjudicator but chose to remain silent, however, the Adjudicator went on to consider the claims of the applicant according to the document he had and found that the claims of the applicant lack credibility and reliability in respect of the torture risk claims.  The Adjudicator having considered the various reports of the Philippines and the allegations made by the applicant being bare assertions by a hearsay in over a year ago and that the Philippines being such a vast country that the applicant has failed in her claim under the torture risk element.

9.As for the BOR 3 risk, the Adjudicator found that the applicant had not suffered any injury nor has she shown that she will face the future risk of serious harm.  According to the Country of Original Information (“COI”), there is a reasonable availability of state protection from such harm, so the claim under BOR 3 risk also failed and the Adjudicator also found that the BOR 2 risk had not been made out.

10.As for Persecution risk, as far as the applicant is concerned, she had not suffered any real injury and the alleged threat were made by individuals, one of whom is a drug trafficker and not shown to have any state connection.  At the end of the day, the Adjudicator found she had also failed to raise any real or foreseeable risk of persecution.

Legal principle

11.In an application for judicial review, the court will examine whether the Adjudicator:

a. made any error of law in its decision;

b. handle the matter or adopt the procedures without compliance with high standard of fairness as required by the law and explained by the Court of Final Appeal in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187; and

c. whether the application of the enhanced Wednesbury test, by means of a rigorous examination and anxious scrutiny of the decision‑making process and the reasons by which the decision‑maker reached the decision was satisfied; AM v Director of Immigration and another (2014) 1 HKC 416, paragraph 34.

12.The standard of review is said of “rigorous examination and anxious scrutiny to ensure that the required high standards of high fairness have been met”; Prabakar, paragraph 45.

13.As I have pointed out the Adjudicator had very carefully considered the various points of law and the available COI report of the Philippines together with the evidence of the applicant before the Director and had come to the conclusion rightly that the appeal must be dismissed. I find that the applicant had failed to demonstrate any reasonably arguable grounds to meet the test in Peter Po Fun Chan v Winnie C W Cheung and another (2007) 10 HKCFAR 676, paragraphs 14‑17. Accordingly, the application for leave to apply for judicial review is refused.

Dated the 19^th day of January 2018.

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