Oxina Joan Patricio v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 2416/2018 on BabelCite. This High Court CFI judgment was delivered on 22 July 2020.
1. The applicant applies for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dated 4 October 2018 (“ the Board’s Decision ”) with the Director of Immigration (“ the Director ”) as interested party.
Cited by 3 cases · Cites 1 case
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HCAL 2416/2018 [2020] HKCFI 1663 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2416 of 2018 BETWEEN
Application for Leave to Apply for Judicial Review 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 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dated 4 October 2018 (“the Board’s Decision”) with the Director of Immigration (“the Director”) as interested party. 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 (“RHC”), by letter, invited the applicant to appear before it in order to explain the above to her. 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 26 September 2019. 3.Leave was granted to the applicant to amend Form 86 by deleting the Director to be replaced by the Board as the respondent and by deleting the words “Same as above” to be replace by the Director as the interested party. The applicant 4.The applicant is a national of the Philippines. She last came to Hong Kong on 6 February 2016 as a visitor and was permitted to stay until 11 February 2016. She overstayed. On 12 February 2016, she surrendered to the Immigration Department. On 25 July 2016, she lodged her non-refoulement claim. 5.She claimed that if refouled, she would be harmed or killed by her creditor, Delia Panganiban and her husband, Roy M. Oxina. In 1998 she married to Roy and in 1999 she gave birth to a son. Roy never worked. She had come to Hong Kong to work as a domestic helper in 2003 and remitted money to Roy. She was told by her mother that Roy used the money for gambling and womanizing. She stopped remitting money to him. In 2005, she returned to the Philippines and told Roy that she wanted to divorce him. He disagreed and said that he would kill her if he discovered that she had an affair in Hong Kong. In October 2015 whilst she was in the Philippines, the creditor, Delia came to her house together with other people. At that time, her husband had left and moved to his family’s home. They claimed that Roy had borrowed 200,000 pesos from them. They asked her to repay the loan for Roy. She did not have money to repay them. They threatened to harm her if she did not pay. She came to Hong Kong because she did not feel safe. The Director’s Decision 6.The Director considered her application in relation to the following risks:
7.By Notice of Decision dated 10 August 2017 (“the Director’s Decision”), the Director refused her claim for the reason that her claim was not substantiated. The Board’s Decision 8.The applicant appealed to the Board against the Director’s Decision and she attended a hearing before the Adjudicator on 4 June 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 conclusions below.
Application for leave to apply for judicial review 11.The applicant filed Form 86 dated 23 October 2018 for leave to apply for judicial review of the Board’s Decision. 12.In her affirmation, she did not set out any reasons in support of her application other than that she felt that the Board’s Decision was unfair and erroneous. DISCUSSION 13.The applicant appeared before me. She said that she was free to state her case before the immigration officer and before the Adjudicator at the Board hearing. 14.I put the Board’s findings to the applicant and asked her if she had any comments. She said that she had no comments. 15.The Court of Appeal in Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14 held that the immigration officer and the Adjudicator are the facts finders, subject to judicial review. However, there is no evidence to show that the Board erred in its finding of the facts or in the application of the law to her case. 16.The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review. CONCLUSION 17.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 22nd 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
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