Morillo Eleja Loquinario v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 1773/2018

[2020] HKCFI 1368

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1773 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 15 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.Leave was given to the applicant to amend Form 86 by deleting the Director of Immigration (“the Director”) as the respondent, deleting the Torture Claims Appeal Board and replacing it with the Director as the interested party.

The applicant

3.The applicant is a Filipino national. She came to Hong Kong as a domestic helper since 1996. Her employment contract was terminated, but she did not depart Hong Kong. She overstayed since 30 May 2009. On 7 March 2015, she was arrested by police and was referred to the Immigration Department on 10 March 2015.  On 19 March 2015, she lodged a non-refoulement claim.

4.In support of her claim, she said that if refouled, she would be harmed or killed by her husband because he suspected that she had an affair with another man. She started working in Hong Kong as a domestic helper since 1996. In March 1997, her husband suspected that she had affairs with another man. He was angry and said that he would kill her. Although she explained to him that she was faithful to him. He simply did not believe her. She had not seen him since as she avoided him whenever she returned to the Philippines.

The Director’s Decision

5.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”).

6.By Notice of Decision dated 15 March 2018 (“the Director’s Decision”), the Director refused her claim for the reason that her claim was not substantiated.  It was unlikely that she would be exposed to the risks as she claimed [11]; state protection was available [12] and internal relocation was open to her [21].

The Board’s Decision

7.The applicant appealed to the Board against the Director’s Decision and she attended a hearing before the Adjudicator on 19 June 2018.

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

9.The Board considered the applicant’s evidence and, for the reasons set out in the Board’s Decision, came to the conclusion that her husband was no longer interested in the rumour of her affairs with another man [30] and that there was no genuine and substantial risk of being harmed or killed by her husband [31].

Application for leave to apply for judicial review

10.The applicant filed Form 86 dated 29 August 2018 for leave to apply for judicial review of the Board’s Decision.

11.She did not set out any grounds for her application.

DISCUSSION

12.The applicant appeared before me. She said that she was free to state her case before the immigration officer and the Adjudicator at the Board hearing. Her duty lawyer had explained the Director’s Decision to her. She was able to read the Board’s Decision herself.

13.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.”

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

CONCLUSION

15.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 7th day of July 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