Pepito Dyesebel Leopoldo v. Torture Claims Appeal Board /Non-refoulement Claims Petition Office

HCAL 2945/2018

[2020] HKCFI 1200

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2945 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.The applicant applies for leave to apply for judicial review of the Decision dated 14 December 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not request an oral hearing. The Court will deal with her application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 was amended by deleting the Board and replacing it with the Director of Immigration (“the Director”) as interested party.

The applicant

4.The applicant is a Filipino national. She came to Hong Kong and worked as a domestic helper on 11 March 2015. Her working visa expired and she overstayed. On 6 October 2016, she surrendered herself to the Immigration Department. On 23 February 2017, she lodged her non-refoulement claim.

5.The applicant claimed that, if refouled, she would be harmed or killed by a neighbour of her mother-in-law called Gadiane because she had witnessed him kill his wife and his daughter at their home. Gadiane saw her and threatened that if she remained in the Philippines, he would kill her. She told all these to her mother-in-law, who advised her to leave. She left the Philippines for Hong Kong.

The Director’s Decision

6.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”).

7.By Notice of Decision dated 9 February 2018 (“the Director’s Decision”), the Director refused her claim for the reason that there were no substantial grounds for believing that she would be killed by Gadiane if she returned to the Philippines [10]; that state protection was available to her [14] and that internal relocation was an option open to her [16]. Also, she was unable to establish BOR 2 risk.

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision and attended a hearing on 20 November 2018.

9.By the Board’s Decision, the Board rejected her appeal and confirmed the Director’s Decision.

10.The Board considered the applicant’s evidence and, for the reasons set out in the Board’s Decision [17-36], came to the conclusion that it did not accept her evidence that she had witnessed the murder as she claimed; that she was threatened with harm by Gadiane and that her claim was a fabrication [37].

11.On the basis of the evidence, the Board did not accept that she would be subjected to any of the risks above.

Application for leave to apply for judicial review

12.The applicant filed Form 86 on 21 December 2018 for leave to apply for judicial review of the Board’s Decision.

13.In her affidavit in support of her application, she did not set out any ground in support of her application. Nor did she say that the Board was in error in coming to its decision.

DISCUSSION

14.As the Board did not accept her evidence, she has no factual basis in support of her claim and her claim will fail.

15.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

16.There is nothing to show that the Board had committed any error in its finding of the facts or its application of the law to her case.

17.The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.

CONCLUSION

18.Since the applicant’s application for judicial review of the Board’s Decision 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 16^th day of June 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