Case Document

100%Judiciary

HCAL 1814/2018

[2020] HKCFI 1467

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1814 of 2018

BETWEEN

	Orense Marian Masangkay	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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.The applicant applies for leave to apply for judicial review of the Decision dated 3 July 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 deleting the Director of Immigration (“the Director”) as respondent, deleting the Board and replacing it with the Director as interested party.

The applicant

4.The applicant is a Filipino national. She had come to Hong Kong as domestic helper and returned to the Philippines. On 12 November 2013, she came as a visitor and was permitted to stay until 26 November 2013. She overstayed and was arrested for committing offences for which she was convicted and sentenced to two months’ imprisonment. On 14 February 2017, she lodged her non-refoulement claim.

5.In support of her claim, she said that if refouled, she feared that she would be tortured or even killed by her husband because of her extramarital affair and pregnancy in Hong Kong. Her husband assaulted and abused her shortly after their marriage. She had to come to Hong Kong to work as a domestic helper. She overstayed after termination of her employment. She met a Muslim man in Hong Kong. They had extramarital affairs. She had converted into a Muslim herself. Therefore, her family would disown her.

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 August 2017 (“the Director’s Decision”), the Director refused her claim for the reason that her claim was not substantiated. The Director found that the level of risks she alleged was low [14-20]; state protection was available to her [21]; internal relocation was an option open to her [30] 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 17 May 2018 and 23 May 2018 respectively.

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 it accepted the alleged facts of the applicant’s case [75 & 76]. However, on those facts, there was no state involvement; no evidence that her husband would harm her in future if she returned to the Philippines; state protection and internal relocation were available to her. See paragraphs 77-90 of the Board’s Decision.

Application for leave to apply for judicial review

11.The applicant filed Form 86 on 3 September 2018 for leave to apply for judicial review of the Board’s Decision.

12.In her affirmation in support of her application, she repeated her facts that she was abused by her husband; that she had cohabited with the Muslim man in Hong Kong; that her husband might kill her if he knew of her infidelity; that her parents would disown her; that she had no state protection and that relocation was not viable for her. She did not 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 was able to read 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 had told the truth to the Adjudicator.

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 10^th day of July 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 10/7/2020 Orense Marian Masangkay 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 10/7/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 8219/17/8/257/F425 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1589/17 (formerly RBCZ 10510/17) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)