Lumitap Dolores Daluyen v. Torture Claims Appeal Board / Non-refoulement Claims Petition

HCAL2887/2018

[2019] HKCFI 1800

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2887 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 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 on 20 September 2016 as a domestic helper and she was permitted to stay until 20 September 2018. Her employment contract was terminated prematurely on 20 March 2017. She did not depart. She surrendered to the Immigration Department on 5 April 2017. She subsequently lodged her non-refoulement claim.

3.In support of her claim, she claimed that if refouled, she would be harmed or killed by her ex-boyfriend, Jonathan.

4.In her statements given to the Director and the Board, she said that she lived with Jonathan after she divorced her ex-husband. She had a daughter with Jonathan. She discovered that Jonathan was a deep drunkard and drug abuser. He was violent and beat her from time to time. He insulted her in front of other people. He had even threatened her for his demand, holding a knife at her and her daughter. She moved back to live with her family. But Jonathan went there with his friends. He threw stones at her house. She therefore decided to come to Hong Kong to work as a domestic helper.

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 12 February 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 22 June 2018.

8.By Decision dated 2 October 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. It stated in its Decision that it accepted her evidence on the facts. It refused her claim on the reasons below.

(1)   Torture risk: her fear did not come within the definition of torture in section 37U(1) of the Ordinance [48].

(2)   BOR 2 risk: this was not a case where the applicant had committed criminal offence. It had nothing to do with this risk [69 & 70].

(3)   BOR 3 risk: the Board accepted that there was a small risk under this category. However, the option of internal relocation was available to her [56].

(4)   Persecution risk: the risk as the applicant alleged did not come within the definition of the Convention [64]. The Board also found that state protection was available to her [66].

Application for leave to apply for judicial review

10.In her Form 86 dated 17 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.

11.She relied upon those grounds annexed to Form 86 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 is 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 could read English herself to understand the hearing bundle and the Board’s Decision.

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

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

CONCLUSION

5.  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 19^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