Emma Loizaga Llanes Alias Llanes Emma L v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office and Another

HCAL 2630/2018

[2020] HKCFI 886

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2630 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 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. On 10 November 1992, she came to Hong Kong as a domestic helper. Her employment contract terminated on 24 January 1997. Since then, she overstayed. She gave birth to her daughter on 30 July 1999.

3.She claimed that in July 1992, she met her ex-boyfriend and they fell in love after one month. She was about to come to Hong Kong to work as a domestic helper. Before she left, they met and he proposed to her. He confided to her that he was a member of the New People’s Army (“NPA”). She was scared because she knew that those people were terrorists and they were cruel to the people. She left him for Hong Kong. But she did not have contact with him ever since. She learned from her neighbour that her ex-boyfriend had gone to her house with weapons. There were gunshots. The next day, the neighbour found that her parents and brother had been killed. She believed that the NPA people killed her family in order to take over the family’s piece of land.

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 under RC”).

5.By Notice of Decision dated 31 January 2018 (“the Director’s Decision”), the Director rejected her claim for the reason that her claim was not substantiated.

The Board’s Decision

6.The applicant appealed to the Board and she attended the hearing on 5 October 2018.

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

8.The Board considered the applicant’s case and concluded:

“33. For the reasons given below, I do not accept that the Applicant had an ex‑boyfriend who was an NPA member, or the NPA killed her family members. I find that the Applicant invented the entire case to prolong her stay in Hong Kong. I do not accept that the Applicant had been truthful in her claim. I find that there is no real risk of the Applicant facing any harm if she returns to the Philippines now or in the reasonable foreseeable future.”

9.Even if she had an ex-boyfriend, the Board considered that he would not have any interest in her after a period of some 26 years [66].

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 to apply for judicial review of the Director’s Decision and the Board’s Decision respectively.

11.In her affirmation in support of her application dated 22 November 2018, the applicant relied upon the following grounds:

1.  procedural impropriety: failure to conduct sufficient inquiry into the relevant country of origin conditions;

2.  procedural impropriety / irrationality; failure to [provide] reasons for assessment of lack of BOR 3 risk and / or sufficient basis to support conclusion of lack of BOR 3 risk; and

3.  error / misdirection in law: failing to take into consideration of psychological strain and threats to her personally or threats to her directly, to kill her.

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 to apply 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. She could read English herself.

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

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

19.Ground (1) is her opinion without any evidence in support of it.

20.Ground (2) and Ground (3) are irrelevant because the Board simply discredited her evidence. She has no factual basis in support of her claim.

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

CONCLUSION

22.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 22^nd day of May 2020

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