Meniano Norenda Lacbao v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Another

HCAL1657/2018

[2019] HKCFI 2334

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1657 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

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 as a domestic helper and was permitted to stay until 21 December 2011. Her employment was terminated prematurely, but she overstayed. She was arrested by the Immigration Department on 5 April 2016 and was charged for breach of conditions of stay. She was convicted and sentenced to 4 months’ imprisonment. She lodged her non-refoulement by way of a written submission of 25 June 2016.

3.In her statements given to the Director and the Board, she claimed that if refouled, she would be killed by her brother because she failed to repay the loan, resulting that the piece of the land of hers and her brother’s was taken over by the creditor.

4.She said in her statements to the Director and the Board that in 2008, she had borrowed about 30,000 pesos from her aunt to pay her training fee as a domestic helper. She was unable to repay. Her aunt was trying to take over a piece of land which was inherited by her and her elder brother from their father. Her elder brother was very angry with her and had threatened to kill her. She had lost contact with her aunt since 2009. She had come to Hong Kong to work as a domestic helper since 2008. She had no idea whether her aunt had taken over the piece of land.

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 March 2018 (“the Director’s Decision”), the Director rejected her claim for the reason that her claim was not substantiated.

The Board’s Decision

7.The applicant appealed to the Board and she attended a hearing before the Adjudicator on 22 June 2018.

8.By Decision dated 11 July 2018 (“the Board’s Decision”), the Board refused her appeal and confirmed the Director’s Decision.

9.The Board considered the applicant’s case and found that the applicant’s claim failed on all applicable grounds [47] for the reasons below.

a.  There was no evidence that her elder brother intended to do anything to her notwithstanding that he had made oral threat to kill her. But there was no evidence to show that he would really do so. It was at the spur of the moment that he had said so. [32 & 33]

b.  It was only a family business where her aunt intended to take over the piece of land. However, she had not done so. [34]

Application for leave to apply for judicial review

10.In her Form 86 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.

11.In her affirmation in support of her application dated 17 August 2018, the applicant relied upon the following grounds:

a.  procedural impropriety: failure of considering that her brother would harm her;

b.  procedural impropriety / irrationality: the Director and the Board failed to consider the state’s duty to provide her with protection; and

c.  error / misdirection in law: failing to take into consideration of psychological strain and threats to her personally.

DISCUSSION

The Director’s Decision

12.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.

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

14.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.”

15.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

16.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.

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

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

19.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.

20.Ground (1) and Ground (2) are irrelevant because the Board simply discredited her evidence. She has no factual basis in support of her claim.

21.Ground (3) fails as she admitted that she did not raise this issue with the Board at the hearing.

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

CONCLUSION

23.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 September 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