Rapanan Rema Capa v. Torture Claims Appeal Board /Non-refoulement Claims Petition Office

Case No.HCAL 2429/2018[2020] HKCFI 1729

Court

High Court CFI

Date28 Jul 2020

Judge—

Case Document

100%Judiciary

HCAL 2429/2018

[2020] HKCFI 1729

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2429 of 2018

BETWEEN

	Rapanan Rema Capa	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 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 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dated 19 October 2018 (“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 (“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 did not attend the hearing on 26 September 2019.

3.I shall proceed to consider her application on paper.

4.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court (“RHC”), on this Court’s own motion, Form 86 was amended by deleting Immigration Department and replaced by the Torture Claims Appeal Board/Non-refoulement Claims Petition Office as respondent.

The applicant

5.The applicant is a national of the Philippines. On 25 January 2004, she came to Hong Kong as a visitor and was permitted to stay until 1 February 2004. She overstayed and was arrested by police on 15 June 2016. She lodged her non-refoulement claim on 17 June 2016.

6.She claimed that if refouled, she would be harmed or killed by Cesario, who had killed her husband, and also her creditor as she was unable to pay the debt. She also feared that she might be harmed by Johnny De Asis, the brother-in-law of her husband, who tried to rape her and the family of Romeo as she had two children with another man, her Sri Lankan boyfriend, Mohammadu Imtiyas Meera Saibu Abdeen.

The Director’s Decision

7.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”).

8.By Notice of Decision dated 19 March 2018 (“the Director’s Decision”), the Director refused her claim for the reason that her claim was not substantiated.

The Board’s Decision

9.The applicant appealed to the Board against the Director’s Decision and she attended a hearing before the Adjudicator on 4 June 2018.

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

11.The Board considered the applicant’s evidence and, for the reasons set out in the Board’s Decision [30-67], came to the conclusions below.

a.The applicant was not a credible witness and it did not accept the facts as she claimed in support of her claim. It did not accept that her husband was killed as she said [68]; that she had incurred a debt and she was threatened [69]; that she was in fear of her brother-in-law due to his past actions or that she was in fear of Romeo’s family because of her relationship with her boyfriend in Hong Kong [69 & 70].

b.The Board did not accept that there was anyone in the Philippines that would harm her for the reasons she claimed or for any other reasons if she returned to the Philippines [71].

c.The Board did not accept that there was any real risk that she would face any of the proscribed forms of harm should she return to the Philippines [72].

Application for leave to apply for judicial review

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

13.In her affirmation, she did not set out any reasons in support of her application other than saying that they disregarded her dangerous situation.

DISCUSSION

14.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. There is nothing amiss in the assessment of the facts by the Board.

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

CONCLUSION

16.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 28^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 28/7/2020 Rapanan Rema Capa 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 28/7/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 11012/18/4/22/F670 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 148/18 (formerly RBCZ 12223/16) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

Cites 1 case

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