Genon Maria Leonora Ombrosa v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1858/2018

[2020] HKCFI 1218

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1858 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 8 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant is not legally represented and she did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court, by letter, invited the applicant to appear before it in order to explain the above to them. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. In response to the Court’s invitation, the applicant attended the hearing on 18 December 2019.

3.Leave was granted to the applicant to amend Form 86 by adding the Director of Immigration (“the Director”) as interested party.

The applicant

4.The applicant is a Filipino national. She came to Hong Kong on 8 September 2014 as a domestic helper. She overstayed after termination of her contract since 29 October 2014. On 18 December 2014, she surrendered herself to the Immigration Department. On 2 March 2015, she lodged her non-refoulement claim.

5.In support of her claim, she said that if refouled, she feared that she would be harmed or killed by Diosdado Plarian as she had a private dispute with him.

6.The applicant and Diosdado cohabited in the Philippines and they had a son. She worked in Hong Kong as a domestic helper, leaving her son to Diosdado. She sent $2000 to Diosdado for maintaining her child. However, she was told that Diosdado was a drug addict and he used the money she sent to him to buy drugs. She told her mother to take away her son and move to live in her grandmother’s house. Diosdado was angry. He threatened that he would kill the applicant if she returned to the Philippines. Whilst she was in Hong Kong, she met another man, with whom she had affairs. She gave birth to a daughter. Her daughter had right of residency in Hong Kong. Then the man disappeared. She was afraid that Diosdado would harm her if she returned to the Philippines.

The Director’s Decision

7.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”).

8.By Notice of Decision dated 12 February 2018 (“the Director’s Decision”), the Director refused her claim for the reason that her claim was not substantiated.  The Director found that there was no substantial ground for believing that there would be any real and substantial risk of her being harmed by Diosdado [13]; state protection was available to her [19]; internal relocation was an option open to her [22] and the applicant failed to establish her claim under BOR 2 risk.

The Board’s Decision

9.The applicant appealed to the Board against the Director’s Decision and attended the hearing on 14 June 2018.

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

11.The Board considered the applicant’s evidence and, for the reasons set out in the Board’s Decision, came to the conclusion that it had considerable doubts in relation to the truthfulness of the applicant’s claims [36]; that it considered it likely that her claims in relation to Diosdado’s drug use had been fabricated and that there were no substantial or strong grounds or a real chance or a real risk that the applicant would suffer harm from him upon her return to the Philippines [43].

Application for leave to apply for judicial review

12.The applicant filed Form 86 on 6 September 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.The applicant appeared before me. She said that she was treated fairly by the immigration officer and the Adjudicator of the Board. Her lawyer had explained the Director’s Decision to her and she could read the Board’s Decision herself.

15.I put the Board’s findings to her and asked her if she had any comments on them. She said that she had no comments.

16.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.”

17.There is nothing to show that the Board had committed any error in its application of the law to her case or in coming to its conclusions on the facts of the case.

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

CONCLUSION

19.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 18^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