Case Document

100%Judiciary

HCAL 1824/2018

[2020] HKCFI 1472

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1824 of 2018

BETWEEN

	Dela Luna Merle Luarca	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent

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 the Applicant being absent 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 19 July 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant was absent on the day of hearing on 25 October 2019 without giving any prior notice or explanation. There is no evidence that the Hearing Notice was not delivered to her. The Court of Appeal in Re Abdus Salam [2019] HKCA 1091 at §22 held that this Court should consider the merits of her application and so I will do.

The applicant

3.The applicant is a Filipino national. She came to Hong Kong on 27 November 2005 as a domestic helper. Her employment contract was terminated, but she did not depart Hong Kong. She overstayed since 14 June 2007. On 7 September 2017, she was arrested by police. On 23 November 2017, she lodged a non-refoulement claim.

4.In support of her claim, she said that if refouled, she would be harmed or killed by people from the collaborative union due to her default in repaying the loan. The loans were drawn by her friend Leticia, who looked after her parents in the Philippines. The loans were for their expenses. Leticia passed away in June 2017. Her parents had passed away too. She knew that the Union people were looking for her. She worried that she might not be safe if 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 27 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 [13]; state protection was available [17] and internal relocation was open to her [20].

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 20 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 she was not telling the truth about the loan or what she was doing in the 10 years she overstayed in Hong Kong [19]; that she failed to establish her claim [42]; that state protection would be available to her [51] and finally, that internal relocation was an option open to her [54].

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 4 September 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.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.”

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

CONCLUSION

14.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 Dela Luna Merle Luarca 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 11186/18/4/196/F692 Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)