Villano Maricar Tabita v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

HCAL1594/2018

[2019] HKCFI 1773

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1594 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 to apply for judicial review against the respective decisions of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”).

The applicant

2.The applicant is a national of the Philippines. She arrived in Hong Kong and was allowed to stay as a visitor until 9 August 2014. She overstayed without the Director’s permission. She was arrested by police on 4 October 2014 and was referred to the Immigration Department for investigation. She lodged a non-refoulement on 20 October 2014.

3.In her statements given to the Director and the Board, she claimed that if she was returned to the Philippines, she would be harmed or killed by the money lender, Mr. Thelmo Caragao. She had borrowed 200,000 pesos from this money lender for her coming to Hong Kong to work as a domestic helper. She came and worked as a domestic helper. She sent money back for repayment and interest. However, her employment was terminated. She did not have money to repay the loan. The money lender threatened her mother and her in Hong Kong for repayment of the loan and payment of the interest. She therefore came to Hong Kong.

The Director’s Decision

4.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”).

5.By Notice of Decision dated 22 January 2018 (“the Director’s Decision”), the Director rejected her claim for the reason that her claim was not substantiated.

The Board

6.The applicant appealed to the Board and she attended a hearing before the Adjudicator on 10 May 2018.

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

8.The Board considered the applicant’s case carefully and found that it accepted the applicant’s facts. However, such facts did not fall within the definition of torture under section 37U (1) of the Ordinance [52]; that she was not subjected to BOR 3 risk [68]; that she did not have a well-founded fear of persecution in the Philippines [77] and finally that she was subjected to BOR 2 risk [79].

Application for leave to apply for judicial review

9.In her Form 86 dated 10 August 2018, under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave for judicial review of the Director’s Decision and the Board’s Decision respectively.

10.In her affirmation in support of her application dated 10 August 2018, the applicant relied upon the following grounds:

(1)   procedural impropriety: failure of conducting sufficient and independent research and analysis of the Country of Origin Information (“COI”), cherry-picking the information for their decisions; failure of paying attention to the requirement that the government must discharge its duty of due diligence towards its citizens and failing to properly assess BOR 3 risk;

(2)   error/misdirection in law: without taking into account of the psychological strain and threats by the money lenders; and

(3)   irrationality: insufficient reason to support their conclusions respectively.

DISCUSSION

The Director’s Decision

11.In my view, the applicant is not entitled to apply for judicial review of the Director’s Decision without exceptional circumstances. In Haider Zeeshan v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and The Director of Immigration [2018] HKCFI 2647, HCAL 806/2018, 5 December 2018, I had held that the 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 Decision and this Board has wider power than this Court to make investigations in the matter. The Board had considered his appeal and made its Decision.

12.Also, the Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018, having considered the relevant statutory provisions of the Immigration Ordinance, Cap. 115 in relation to the powers of the Director and the Board, decided:

“45. All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. For these reasons we are of the view that the judge was correct to conclude that the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”

13.Since the applicant has not set out any exceptional circumstances, his 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.The applicant appeared before me. She confirmed that she could read English and she had no complaint against either the Immigration officer or the Adjudicator. She understood their decisions. She considered that he had had a fair hearing before the Board.

16.It is obvious that as the Board accepted her evidence on the facts, but found that her case did not come under the protection of the relevant statutory provisions and Conventions.

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

18.Grounds (1), (2) and (3) are her opinions without any evidence in support of it. She had not raise any psychological issue before the Adjudicator. They fail.

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

CONCLUSION

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

Dated the 16^th 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