Mamac Mary Resfie Luma Yag v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 2860/2018

[2020] HKCFI 1872

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2860 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

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 dated 30 November 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not request an oral hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with her application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 was amended by replacing the Immigration Department with the Board as proposed respondent and replacing the Immigration Department with the Director of Immigration (“the Director”) as interested party.

The applicant

4.The applicant is a Filipino national.  She came to Hong Kong as a visitor.  She overstayed and lodged her non-refoulement claim by way of a written signification dated 27 July 2015.

5.The applicant claimed that, if refouled, she would be harmed by her ex boy-friend and three unknown men who looked for her ex boy-friend.  The facts are in paragraph 8 of the Board’s Decision.

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 15 February 2018 (“the Director’s Decision”), the Director refused her claim for the reason that the level of risk that she would be harmed upon her return to the Philippines would be low [13]; that state protection was available to her [18] and that internal relocation was an option open to her [22].

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision and attended the hearing on 20 September 2018.

9.The Board rejected her appeal and confirmed the Director’s Decision.

10.The Board considered the applicant’s evidence and for the reasons [66-88], found that her ex boy-friend had no connection with the state or state agent; the three unknown people story was incredible; that her injuries did not amount to minimum level of severity and that state protection would be available to her and therefore there was no real risk of harm or being killed if she returned to the Philippines.  Below is a summary of its findings.

1.The Board accepted her relationship with her ex-boyfriend, who had treated her badly. [68]

2.Her ex-boyfriend was not connected with the government or political figures of her state. [69]

3.Her ex-boy-friend had treated her badly by slapping her with hand or kicking her, locking her up, tying her hands with rope and verbal threats. [70]

4.There was no evidence that her ex-boyfriend would kill her or seriously injure her. [71]

5.Her ex-boyfriend’s treatment did not attain the minimum level of severity. [75]

6.As to the unknown men, the Board did not accept that they would harm her or attack her. [76]

7.There was no reliable evidence that the state was involved.

8.State protection would be available to her. [86]

Application for leave to apply for judicial review

11.The applicant filed Form 86 on 13 December 2018 for leave to apply for judicial review of the Board’s Decision on the ground that the Board had not considered her dangerous situation.

DISCUSSION

12.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny in light of the grounds advanced by the applicant.  See paragraph 10 above.

13.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.”

14.The Court does not find any error of law or procedural unfairness in the Board’s findings.  The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

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

CONCLUSION

16.I refuse her application for leave to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss her application.

Dated the 6^th day of August 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

Form CALL-1