Case Document

100%Judiciary

HCAL 1625/2018

[2020] HKCFI 1022

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1625 of 2018

BETWEEN

	Padernal Rina Gortayo	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	1^st Putative Respondent
	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 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:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review against the respective decisions of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) and the Director of Immigration Department (“the Director”).

The applicant

2.The applicant is a national of the Philippines. She came to Hong Kong as a domestic helper and was allowed to stay as such until 10 June 2015 or two weeks after termination of her employment. Her contract was prematurely terminated on 3 September 2014. She overstayed since 18 September 2014. On 14 August 2015, she surrendered to the Immigration Department. She made her non-refoulement claim on 22 June 2016.

3.She claimed that if refouled, she would be killed by her husband. She said in her statements that she married her husband in 1997 and they had a son. Since 2002, her husband became unemployed. He was addicted to drug and he drank to be intoxicated. He scolded her and their son. They had argument over trivial matters and he slapped her face or pushed her to the wall. He even pointed an un-licensed gun at her and threatened that he would kill her. He assaulted her once or twice a week. She did not report to police because he threatened to kill her if she did so. Her husband was associated with the New People’s Army (“NPA”). The situations carried on until March 2010 when she moved with their son to live in other places in order to avoid him. Her sister suggested she work in Hong Kong. she took her advice. Her son stayed with her sister. But her husband was still looking for her and threatened to kill her.

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”).

5.By Notice of Decision dated 4 January 2017, the Director refused 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 a hearing before the Adjudicator on 13 June 2018.

7.By Decision dated 31 July 2018 (“the Board’s Decision”), the Board rejected her appeal and confirmed the Director’s Decision.

8.The Board considered the applicant’s evidence and, for the reasons set out in the Board’s Decision, came to its finding of facts as set out below.

a.     It accepted that she was married and she was abused by her husband during their marriage [50].

b.     But it had doubts in relation to her claims of ongoing threats and it considered her claims regarding her husband’s association with NPA to be vague and unpersuasive and indicative of fabricating evidence [50].

c.     It did not accept that her husband continued to threaten her or her family as she had no contact with him for several years [50].

d.     The Country of Origin Information showed that there was some protection for women who experienced domestic violence or fear of further domestic violence and the Board did not accept that there was a real chance or a real risk or substantial or strong grounds for believing that she would suffer harm amounting to torture, a risk to her life under BOR 3 risk or Persecution risk [60].

e.     Their son is now an adult and he can choose to maintain a relationship with his father without the applicant’s involvement [79].

Application for leave to apply for Judicial Review

9.In Form 86, the applicant applied for leave to apply for judicial review of the Board’s Decision.

10.In her affidavit in support of her application dated 13 August 2018, the applicant simply said that the Director and the Board disregarded her dangerous situation.

DISCUSSION

The Director’s Decision

11.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.

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

13.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.”

14.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

15.The applicant appeared before me. She confirmed that she was able to speak freely and tell her stories fully before the Immigration officer and the Adjudicator. She could read English herself and she understood the Board’s Decision.

16.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.

17.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.

18.The Court of Appeal in Re: Moshsin Ali [2018] HKCA 549 held that the findings of fact by the Adjudicator was final [42], subject to judicial review. However, there is no evidence to show that the Board was in error in coming to its conclusion.

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

CONCLUSION

20.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 of the Board’s Decision. Accordingly, I dismiss her application.

Dated the 5^th day of June 2020

	(Mike Mak)
	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 5/6/2020 Padernal Rina Gortayo 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 5/6/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office 1^st Putative Respondent’s ref. no.: USM 5875/17/1/159/F321 Director of Immigration 2^nd Putative Respondent’s ref. no.: QA T/C 1962/16 (formerly RBCZ 12214/16) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)