Lobaton Mindalin De Oro v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL2958/2018

[2019] HKCFI 1535

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2958 of 2018

BETWEEN

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 oral submission 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 to apply for judicial review against the decision of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) with the Director of Immigration (“the Director”) as interested party.

The applicant

2.The applicant is a national of the Philippines. She came to Hong Kong as a domestic helper on 17 January 2016. Her employment contract expired prematurely and she was allowed to stay until 21 April 2016. She overstayed. On 29 June 2016, she surrendered to the Immigration Department. She lodged her non-refoulement claim on 26 September 2016.

3.In support of her claim, she claimed that if refouled, she would be harmed or killed by her creditors, Joemar Nellama and Arlene Hallea.

4.In her statements given to the Director and the Board, she said she borrowed money from her creditors, the loan sharks for her mother’s medical expenses. Her mother passed away on 6 July 2015. She was unable to pay the debt. In September 2015, the loan sharks came to her house with bodyguards to demand payment of the debt. She was unable to pay. They left after warning her that she must pay the next time. In October 2015, they came again and demanded payment of the debt. Again, she was unable to pay, whereupon they hit her heavily and ransacked her home, breaking the furniture. They took away the valuable things in her house. She reported to police. The police did not take action against them. She therefore went to Manila in November 2015 to make the arrangements to come for Hong Kong as domestic helper. The training took two months. She came to Hong Kong on 17 January 2016.

The Director’s Decision

5.The Director considered her 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.  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”).

6.By Notice of Decision dated 29 January 2018, the Director refused her claim for the reason that her claim was not substantiated.

The Board

7.The applicant appealed to the Board and she attended a hearing before the Adjudicator on 7 November 2018.

8.By Decision dated 7 December 2018 (“the Board’s Decision”), the Board rejected her appeal and confirmed the Director’s Decision.

9.The Board considered the applicant’s case carefully and put her evidence in test by cross-examination in the hearing. It stated in its Decision:

“19. For the reasons below, I do not accept that the Applicant has any outstanding debts. I do not accept the claimed past incidents. I do not accept that the Applicant has been truthful in her evidence. I find there is no real risk of the Applicant facing harm from anyone arising from the claimed loans or debts if she returns to the Philippines now or in the reasonably foreseeable future.”

10.The Board came to the above conclusion after having considered that there were discrepancies and omissions relating to the loans and past incidents [20]; there were inconsistency and omission relating to physical harm she alleged [22-24]; contradiction evidence in her statement to the Director and the Board [37]; no medical evidence in support of memory issues she raised at the hearing [45]; and her evidence was vague, general and lack of detail as if it was not her own personal experience [48].

Application for leave to apply for judicial review

11.In her Form 86 dated 24 December 2018, under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave for judicial review of the Board’s Decision.

12.She relies upon those grounds attached to Form 86 and adopted in her affirmation below:

(1)  the Board had unlawfully fettered its decision by refusing her appeal;

(2)  the Adjudicator acted in a procedurally unfair manner in dealing with her appeal: the hearing bundle was given to her shortly before the hearing without translation;

(3)  the Board’s Decision was unreasonable or irrational in the public law sense or are a result of procedural errors or unfairness: it relied upon the Country of Origin Information which were outdated and not officially recognized or simply hearsay; and

(4)  the Board failed to meet greater care and duty owed to a self-represented claimant.

DISCUSSION

The Board’s Decision

1.  The applicant appeared before me. She confirmed that she had had a fair interview with the Immigration officer and a fair hearing before the Adjudicator. She also confirmed that she understood the Director’s Decision as her lawyer had explained it to her. She said that she could understand the Board’s decision as she could read English herself.

2.  I explained the Board’s findings above to her and asked if she had any comments. She said that she had no comments on them.

3.  It is quite obvious that, apart from some fundamental facts such as her nationality, the Board did not accept the facts as stated by the applicant in support of her claim. Therefore, the applicant had no factual basis for her claim. Those grounds above are quite irrelevant.

4.  The Court of Appeal in Re: Moshsin Ali [2018] HKCA 549 held that the findings of fact by the Adjudicator was final [42].

5.  Those grounds above are either inconsistent with what she said in court or they are her opinions without any evidence in support of them.

6.  The applicant fails to show that she has a reasonable chance of success in her proposed judicial review.

CONCLUSION

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

Dated the 13^th day of June 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