Case Document

100%Judiciary

HCAL2561/2018

[2019] HKCFI 2249

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2561 of 2018

BETWEEN

	Tomad Eva Balabag	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	1^st Putative Respondent
	The Director of Immigration	2^nd Putative Respondent

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 decision of the Adjudicator 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 on 12 August 2009 as a visitor and was permitted to stay until 9 September 2009. She overstayed and was arrested by police on 22 February 2010. She lodged her non-refoulement claim on 18 July 2013.

3.In her statements given to the Director and the Board, she claimed that if refouled, she would be subjected to the threat by 4 armed strangers from the New People’s Army (“NPA”) and their leaders, named Ka Ambo because she had witnessed their involvement in the murder of her neighbour and she would be killed if she report the murder of her neighbour to the police. She believed that the Philippine government and police would not protect her due to her past affiliation with the NPA.

4.She said in her statement to the Director that she joined the NPA in 2007. In 2008, she witnessed 5 NPA members in uniform had killed her neighbour called Alice. They saw her and told her not to disclose it to anybody or they would kill her. Alice’s father asked her to be the witness of the case. She refused. However, she was aware that the NPA members were looking for her and they might kill her. She moved to her sisters’ places to avoid them. Later, she and her family moved to Manila. In 2009, Alice’s father found her in Manila and asked her to be the witness of the murder case. She refused again. She knew that the NPA members might locate her sooner or later. She therefore came to Hong Kong without her family. She said that her family was not involved in the incidents.

The Director’s Decision

5.In April 2010, the applicant made her torture claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, referred to as Part VII C of the Immigration Ordinance (“the Ordinance”). Her claim was rejected by the Director under section 37ZI (1)(b) of the Ordinance on 5 July 2013. Her claim under the Unified Screening Mechanism would be assessed without taking into consideration of the torture claim under Part VII C of the Ordinance as the Director would not reopen this issue.

6.The Director considered her application in relation to the following risks:

a.  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”);

b.  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

c.  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 under RC”).

7.By Notice of Decision dated 22 September 2017 (“the Director’s Decision”), the Director rejected her claim for the reason that her claim was not substantiated.

The Board’s Decision

8.The applicant appealed to the Board and she attended a hearing before the Adjudicator on 19 July 2018.

9.By Decision dated 5 October 2018 (“the Board’s Decision”), the Board refused her appeal and confirmed the Director’s Decision.

10.The Board considered the applicant’s case and found that it was not satisfied that she had established that there were substantial grounds which supported the conclusion that she would face a real risk of ill-treatment as claimed if she returned to the Philippines [43] for the reasons below:

a.  for the inconsistences between her statement to the Director and her evidence before the Board, her claims regarding her problems in the Philippines was lacking in credibility [39];

b.  her claim that she was a witness to the murder of her neighbour was incredible [41]; and

c.  even though if she could establish the facts, which the Board rejected, she would still relocate herself to Manila to avoid the harm [42].

11.In her Form 86 under Order 53, rule 4 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.

Application for leave to apply for judicial review

12.In her submissions in support of her application dated 14 November 2018, the applicant relied upon the following grounds:

(1) the Director’s Decision was unreasonable as BOR 2 risk should cover any extra‑judicial killings that she would face;

(2) she was not given sufficient time and chance to arrange relevant evidence in support of her claim;

(3) the Director had not considered state acquiescence and state protection for her;

(4) the Director had not given due weight to the Country of Origin Information in support of her claim in relation to state protection; and

(5) the Director had failed to take into account the corruption and incompetency of the administration in the Philippines and therefore had failed to maintain the high standard of fairness.

DISCUSSION

The Director’s Decision

13.In the decision 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 held that the applicant could not apply for judicial review of the Director’s Decision without exceptional circumstances because he had appealed to the Board, which was established by statute with wider power of investigation into the facts of the matter. The Board had already heard the appeal and made its Decision.

14.The applicant has not set out any exceptional circumstances.

15.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.”

16.The applicant’s application for leave for judicial review of the Director’s Decision therefore fails in limine. I dismiss her application.

The Board’s Decision

17.The applicant appeared before me. She confirmed that she had no complaint against either the Immigration officer or the Adjudicator. She considered that she had had a fair hearing before the Board. Her lawyer had explained the Director’s Decision to her. She can read English and she understood the Hearing Bundle and the Board’s Decision.

18.I put the Board’s findings to her for her comments. She said that she had no comments.

19.It is obvious that the Board rejected her evidence in support of her claim.

20.All the grounds above are irrelevant to the finding of the facts by the Board. They are also inconsistent with what she said in court.

21.Ground (1) fails as she was not subjected to any criminal charge back in the Philippines. BOR 2 risk is not applicable to her case.

22.Ground (2) to Ground (5) are irrelevant because the Board simply discredited her evidence. She has no factual basis in support of her claim.

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

CONCLUSION

24.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 11th day of September 2019

(Thomas WAN)

for Registrar, High Court

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

Notes for the Applicant:

If leave has been granted, the Applicant or the Applicant’s solicitors must:

a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);

b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and

c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).

Sent to the Applicant

on 11/09/2019

Tomad Eva Balabag

Applicant’s ref. no:

Nil.

Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 11/09/2019

Torture Claims Appeal Board/Non-refoulement Claims Petition Office

1^st Putative Respondent’s ref. no.:

USM 8714/17/10/44/F461

The Director of Immigration

2^nd Putative Respondent’s ref. no.: QA T/C 1998/17 (formerly RBCZ 2001288/14)

Department of Justice,

Senior Assistant Law Office

(Civil Law)

(Civil Litigation Unit 2)