Tordillos Ella Casumpang v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1859/2018

[2020] HKCFI 1217

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1859 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 7 June 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.Leave was granted to the applicant to amend Form 86 by deleting the Immigration Department and replacing it with the Director of Immigration (“the Director”) as interested party.

The applicant

3.The applicant is a Filipino national. She came to Hong Kong on 9 July 2008 as a visitor and was permitted to stay until 11 July 2008. She overstayed and surrendered herself to the Immigration Department on 24 March 2014, some six years later. She lodged her non-refoulement claim by written representations respectively dated 19 March and 16 May 2014.

4.In support of her claim, she said that if refouled, she feared that she would be harmed or killed by people from the New People’s Army (“the NPA”).

5.The applicant worked as a domestic helper in Hong Kong. She claimed that she first met the NPA people was at her sister’s party in the Philippines in 1986. They came with her brother Rolando. On average she gave Rolando around 20,000 Peso every time. Rolando passed away in 1991. She attended his funeral in the Philippines. The NPA people approached her and said that her deceased brother had given the money she sent to him to the party. They wanted her to continue to send money to them direct. She refused and they threatened to kill her. After this incident, she felt being stalked whenever she returned to the Philippines. She feared that those NPA people might harm or kill her as she had refused to pay them money.

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 14 June 2017 (“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 or killed by the NPA people [11]; state protection was available to her [16]; internal relocation was an option open to her [18] and the applicant failed to establish her claim under BOR 2 risk.

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision and attended the hearing on 20 April 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, came to the conclusion that the applicant’s claim was not strong [51]; that she was not harmed between 1993 and 2007 every time she returned to the Philippines [54]; and that internal relocation was an option open to her [72].

Application for leave to apply for judicial review

11.The applicant filed Form 86 on 6 September 2018 for leave to apply for judicial review of the Board’s Decision.

12.In her affirmation in support of her application, she said that her life would be at risk if she returned to the Philippines. 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

13.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.

14.I put the Board’s findings to her and asked her if she had any comments on them. She said that she was still in danger if she returned to the Philippines and she had no further comments.

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 application of the law to her case or in coming to its conclusions on the facts of the 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 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