Millan Immaculada Traiso v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL1644/2018

[2019] HKCFI 1775

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1644 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 decision 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 had twice come to Hong Kong as domestic helper but her contracts were terminated prematurely and she left Hong Kong. In 9 June 2016, she entered Hong Kong as a visitor and was permitted to stay until 23 July 2016. She overstayed without the Director’s permission. On 25 July 2016, she surrendered to the Immigration Department and raised a non-refoulement claim.

3.In support of her claim, she claimed that if she was to return to the Philippines, she would be harmed or killed by Anton Lacson, her creditor because she was unable to repay the loan.

4.In her statements given to the Director and the Board, she said that she had to borrow money from the creditor for the agency fee for her employment in Hong Kong and for repairing her home in the Philippines damaged by typhoon. She was unable to repay because her employment was terminated. The creditor had threatened to kill her if she could not pay. It was through her mother that the creditor made the threat.

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 19 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 15 June 2018.

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

9.The Board considered the applicant’s case and found that it did not accept that the applicant had borrowed money from the creditor for repairing her home in the Philippines. It came to a conclusion that she had fabricated the claim in an attempt to remain in Hong Kong for reasons other than those she had put forward in the application [44].

Application for leave to apply for judicial review

10.In her Form 86 dated 16 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 Board’s Decision.

11.In her affirmation in support of her application dated 16 August 2018, the applicant relied upon the following grounds:

(1)   the hearing bundle was given to her shortly before the appeal hearing and she did not have sufficient time to prepare her case;

(2)   the contents of the hearing bundle were in English and she was unable to obtain interpreter service;

(3)   she was confused at the appeal hearing;

(4)   the Adjudicator had relied upon hearsay information and outdated materials in relation to Country of Origin Information (“COI”);

DISCUSSION

The Board’s Decision

12.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 said that she could read English herself. She understood the Director’s Decision and the Board’s Decision.

13.It is quite obvious that 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. Nevertheless, I shall deal with them.

14.Grounds (1) to (3) fail as they are inconsistent with what the applicant said before this Court.

15.Grounds (4) is her opinion without any evidence in support of it. It fails.

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

CONCLUSION

17.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