Castro Annabell Estrada v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 1723/2018

[2019] HKCFI 1599

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1723 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 Woodcock:

Leave to apply for judicial review be refused.

Observations for the Applicant (Order by Deputy High Court Judge Woodcock):

1.The applicant is a national of the Philippines who arrived in Hong Kong on 16 August 2015 to work as a foreign domestic helper on a two-year contract.  Her contract was prematurely terminated on 30 September 2015 and she should have left Hong Kong within two weeks from that date.  However, the applicant did not depart as required and overstayed in Hong Kong since 15 October 2015.  One month later, she surrendered to the Immigration Department and filed a non-refoulement protection claim.  

2.Her claim was dismissed by the Director of Immigration (“the Director”) on 30 January 2018.  She filed a petition/appeal to the Torture Claims Appeal Board (“TCAB”) on 13 February 2018.  There was a hearing date on 29 May 2018 and subsequently her appeal/petition was dismissed on 9 August 2018.  The applicant filed a notice of application for leave to apply for judicial review on 23 August 2018.  She did not request an oral hearing therefore; I intend to consider her application on the papers.

3.The basis of her claim is that if she were to return to the Philippines she would be harmed or even killed by a loan shark.  Both the Director and the adjudicator of the TCAB set out her evidence and claim in detail in their decisions.  In short, she borrowed 100,000 pesos from a loan shark in her village when she came to Hong Kong to work as a domestic helper.  After her contract was terminated she was unable to repay the loan.  She had received threats via Facebook Messenger and believes she would be harmed if she were to return home.  The loan shark is connected in her village and is the goddaughter of the local Mayor.  The applicant believes she would not find any assistance from the police because of her connection.

4.The adjudicator, as did the Director, analysed the applicant’s claim under all applicable grounds;

a.  risk of torture as defined in part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, (“torture risk”);

b.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of Hong Kong Bill of Rights Ordinance Cap 383 and Article 7, International Covenant on Civil and Political Rights (“ICCPR”) (“BOR 3 risk”);

c.  risk of persecution by reference to the non-refoulement principal under Articles 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“persecution risk”); and

d.  risk of a violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Article 6 ICCPR (“BOR 2 risk”).

5.The adjudicator treated the appeal as a rehearing.  She correctly set out the law and key legal principles for the four applicable grounds.  She set out the applicant’s evidence in detail as well as her consideration and analysis of it.  The adjudicator had her doubts about the credibility of the applicant’s claim and did give her an opportunity to give explanations and further evidence.  Despite that, the adjudicator did not believe the applicant borrowed any money from a loan shark before travelling to Hong Kong in 2015.  It followed that she therefore did not accept that the applicant has been threatened with harm or being killed by the same person in the Philippines.

6.The adjudicator found there to be no foreseeable risk, real and personal risk of being subjected to torture or a real chance of a reasonable likelihood of the applicant being persecuted if she returned home. The adjudicator found the applicant was unsuccessful in showing she was at risk of torture, unable to invoke the protection of BOR 2 or BOR 3 and could not prove a persecution risk for a Refugee Convention reason for the purposes of a non-refoulement protection claim.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

7.The applicant has not listed either the TCAB and the Director as proposed respondents but in any event, I take the view that the proper approach should be that this application for leave to apply for judicial review is sought against the decision of the TCAB only.  The applicant has already utilised the channel of appealing the Director’s decision to the TCAB.  The TCAB treated the appeal/petition as a de novo hearing or rehearing.  The applicant would have covered all mistakes she says the Director made in his appeal to the TCAB.  Anyway, the TCAB would have looked at it to ensure no errors as it treated his appeal/petition as a rehearing.  To seek to judicial review both decisions is not the right course of action to take; there is no room for a judicial review of the decision of the Director as well unless in very specific circumstances.  Those circumstances do not arise here.

8.The supporting affirmation does not list any grounds for seeking leave.  I have nonetheless considered the adjudicator’s decision with rigorous examination and anxious scrutiny as required.  I find the adjudicator’s decision to be without fault.  She has carefully analysed the applicant’s evidence and given full reasons for her finding that the applicant is not a credible claimant.  I will not interfere with her decision.  I do not see any error of law made by the adjudicator.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.  In fact, the same applies to the decision of the Director.

9.In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.

Dated the 2^nd  day of July 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