Case Document

100%Judiciary

HCAL 2426/2018

[2020] HKCFI 1662

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2426 of 2018

BETWEEN

	Odtujan Derbe Cris Victoria	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.This is the applicant’s application for leave to apply for judicial review of the Decisions respectively dated 11 April 2017 and 5 October 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decisions”).

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

The applicant

3.The applicant is a Filipino national. He came to Hong Kong on 17 July 2009 as a visitor. He overstayed since 1 August 2009 and was arrested by police on 26 August 2009. He was referred to the Immigration Department for investigation. He raised his torture claim to the Immigration Department on 25 February 2010.

4.He claimed that if refouled, he would be harmed or killed by Mr. Ricky Abia, Mr. June Abia and Mr. Bongbong Abia (“the brothers”), his childhood friends and neighbours of his farmland for the dispute over stealing coconuts by them.

5.The incidents took place as set out below.

a.His adopted father had leased a farmland for planting coconuts trees and the brothers were their neighbours. At times, the brothers stole his coconuts at the harvest time. His adopted father complained this to him.

b.In June 2009 he went to confront the brothers. They were drunk at that time. The meeting turned out to be a fight between him and the brothers. He was seriously injured. Ricky, who was a member of The New People’s Army, took out a pistol and fired at him. He knew it was an alarm shot, not meant to kill him.

c.He did not seek help from police. Between June to July 2009, he stayed in Manila where he was safe. He went to Hong Kong in July 2009.

d.In 2014, he was told that his adopted father was killed by the brothers and they were still looking for him.

The Director’s Decisions

6.The Director considered his application in relation to the following risks:

a.torture risk under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”);

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 12 May 2015 and Notice of Further Decision dated 10 July 2017, collectively called the (“Director’s Decisions”), the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that his alleged level of risk was low [11]; and state protection [15] and relocation was an open option available to him [18].

The Board’s Decisions

8.The applicant appealed to the Board against the Director’s Decisions.

9.By the Board’s Decisions, the Board rejected his appeal and confirmed the Director’s Decisions.

10.The Board considered the applicant’s evidence and, for the reasons given, was of the view that the applicant failed to disclose a real or existing risk of harm under torture risk [45], the BOR3 risk [51] or the Persecution risk [56]. There was no evidence to show that the applicant would be subjected to BOR 2 risk. See paragraph 26 of the Board’s Decision dated 5 October 2018.

Application for leave to apply for judicial review

11.The applicant filed Form 86 dated 1 November 2018 for leave to apply for judicial review of the Board’s Decisions.

12.He relied upon the grounds below in support of his application.

1.Procedural impropriety: failure to conduct sufficient inquiry into the relevant country of origin conditions.

2.Procedural impropriety/irrationality: failure to conduct oral hearing for BOR 2 claim and failure to provide sufficient opportunities to him to present his case.

3.Error/misdirection in law: failing to take into account the considerations of psychological strain and threats to him personally or threats to kill him; also failing to consider that he faced real risk from the brothers as they were still looking for him.

4.Unreasonableness: insufficient reasons to make decision against his claim, in particular BOR 2 risk.

DISCUSSION

13.The applicant appeared before me and he confirmed that he was free to express his views before the immigration officer and before the Board. He could read the Decisions himself.

14.The Board in paragraph 17 of its decision said that it was unnecessary for it to go over the merits of the immigration officer’s decision, relying upon AM v Director of Immigration HCAL 102/2012 (paras. 28-29). I would like to point out here that the Board misunderstood the authority. This authority held that the Board had the power to hear the applicant’s case afresh de novo, but it did not say that this is the only option open to the Board, quite the contrary. See paragraph 30 of the Judgment. Under Section 18 (1) (a) of Schedule 1A of the Ordinance, the Board has the power to consider the same evidence of the immigration officer. As it will be a waste of costs and time for the Board to rehear the case fresh if it can adopt the evidence and findings of the Director’s Decision, it is incumbent upon it to state the reason for rehearing the case de novo. See paragraphs 17 & 19 of Rahman Mohammad Arifur v Li Kwok-wai, the Adjudicator of the Non-Refoulement Claims Petition Office and Director of Immigration [2018] HKCFI 2726.

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.The grounds above are his general opinions without any evidence in support of them. They do not constitute any valid reasons in support of his application.

17.The applicant fails to show that he has any reasonable prospect of success in his proposed judicial review.

CONCLUSION

18.Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for the intended judicial review. Accordingly, I dismiss his application.

Dated the 22^nd 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 22/7/2020 Odtujan Derbe Cris Victoria 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 22/7/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 1590/15/5/122/F101 & BOR 983/17/9/21/F77 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 81/15 (formerly RBCZ 312/10) & RBCZ 9001821/17 Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)