Valdez Evelyn Ochoada v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office and Another

HCAL1301/2018

[2019] HKCFI 954

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1301 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of the documents only;     or
	consideration of the documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant (Order by Deputy High Court Judge K.W. Lung):

THE APPLICATION

1.This is the applicant’s application for leave for judicial review against the decisions of the Director of Immigration (“the Director”) and the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”).

The applicant

2.The applicant is a Filipino national. She first came to Hong Kong as a domestic helper and was permitted to stay until 5 March 2012. Her employment contract terminated prematurely. She overstayed without the Director’s permission. On 15 June 2015, she surrendered to the Immigration Department and lodged her non-refoulement claim on 1 December 2015. She had a son here and she had made the same application for her son on 23 March 2016.

3.She claimed that if she was to return to the Philippines, she would be harmed or killed by her husband because she had an extramarital affair and had given birth to a son.

The Director’s Decision

4.The Director considered his application in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap 115, (“the Ordinance”) (“Torture risk”);

b.  Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (Risk of violation of the right to life) (“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.  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 under RC”).

5.By Notice of Decision dated 1 September 2016 and Notice of Further Decision dated 31 July 2017, collectively called (“the Director’s Decisions”), the Director refused her application for the reason that her non-refoulement claim was not substantiated.

6.In her statement given to the Director and the Board, she said that she married her husband in 2000. Between 2002 to 2010, her husband continuously abused her with violence after he had got drunk. He came home, slapped her and hit her eyes. But the injuries were not very serious. She did not report the matters to police because she feared that her husband might hit her more. She came to Hong Kong to work in 2010. In early 2015, she had relationship with a Gambian asylum in Hong Kong. In July 2015, her boyfriend returned to Gambia and they kept contact. She gave birth to a child. She dared not tell all these to her family or husband in the Philippines. Her husband might kill her because of her infidelity. She took her friend’s advice and applied for non-refoulement.

The Board

7.The applicant appealed to the Board. She appeared before the Adjudicator on 7 May 2018.

8.By Decision dated 26 June 2018 (“the Board’s Decision”), the Board refused her appeal and confirmed the Director’s Decisions.

9.Having considered her evidence, the Adjudicator found that it was unlikely that her husband would harm her. See §53 of the Board’s Decision. The Board found that the state could provide her with protection. See §54. There was no issue of consent or acquiescence of a public official. See §62. Her experience in the past did not meet the “minimum level of severity” under BOR 3 risk. See §76. Finally, the Adjudicator found that there was no issue of persecution within the context of Persecution risk under RC. See §92.

Application for leave for judicial review

10.By Form 86 dated 6 July 2018, under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave for judicial review of the decisions of the Director and the Adjudicator of the Board respectively.

11.In her affirmation in support of her application dated 6 July 2018, she set out the reasons in support of her application below:

(1)  she did not receive legal representation or assistance for the appeal to the Board or for this application for leave for judicial review;

(2)  her answers in her Non-refoulement Claim Form were not translated to her;

(3)  she did not receive the Director’s letter for additional fact in respect of BOR 2 risk; but she received the Director’s Further Decision;

(4)  her assessment of BOR 2 risk was assessed without any legal representation;

(5)  the Board’s Decision was not translated to her;

(6)  there was no explanation as to how the Director had exercised the balance on the weight to be given to the Country of Origin Information, some of which for and some against her claim; and

(7)  there was no explanation as to how the Board decided that she was not subject to discrimination.

DISCUSSION

The Direction’s Decisions

12.In my view, the applicant is not entitled to apply for judicial review of the Director’s Decisions without exceptional circumstances.  In Haider Zeeshan v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office and The Director of Immigration HCAL 806/2018, I had held that an applicant, without exceptional circumstances, is not entitled to apply for judicial review of the Director’s Decision because the Board has been established by legislation to deal with appeals against the Director’s Decisions and this Board has wider power that this Court to make investigations in the matter. The Board had heard her appeal and made its Decision.

13.Since the applicant has not set out any exceptional circumstances, her application for leave simply fails in limine.

14.For the reasons above, I dismiss the applicant’s application for leave for judicial review of the Director’s Decisions.

The Board’s Decision

15.It is obvious that the Board turned down her appeal on the finding of the facts of her claim. Therefore, she has no factual basis in support of her claim.

16.At the hearing before me, the applicant said that she could read and understand the Hearing Bundle and the Decision herself. She had no complaint against the Adjudicator. She considered that she had had a fair appeal hearing. Grounds (2) and (5) cannot stand as she could read the documents herself. In any event, she was legally represented for the screening process. Her solicitor should have assisted her to give the answers in her Non-refoulement Claim Form.

17.The Court of Appeal in  Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018, Lam VP [22] had said: “This Court has repeatedly held that neither the high standard of fairness laid down in Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration.  We do not find anything amiss arising from lack of legal representation in the process before the Board.” Ground (1) fails.

18.Ground (3) is not believable because if she received the Director’s Further Decision, there is simply no reason for her not receiving the Director’s letter for additional facts. Nor did she provide any additional facts before the Board for its consideration.

19.The Director was not obligated to hold another screening interview for the applicant for the BOR 2 risk. He could deal with it on the papers, which he had done. Ground (4) fails.

20.Grounds (6) and (7) fail too because it is the Adjudicator’s discretion as to what weight should be given to which part of the evidence before she came to the conclusion as to the facts of the case. The Adjudicator had set out her reasons in the Board’s Decision.

21.Having considered the above, I find that the applicant is unable to show that her judicial review has any reasonable chance of success.

CONCLUSION

22.Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant her leave for the judicial review. Accordingly, I dismiss her application.

Dated the 16^th day of April 2019

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