Torres Joan Libunao v. Torture Claims Appeal Board

Case No.HCAL 1653/2019[2020] HKCFI 2452

Court

High Court CFI

Date30 Sep 2020

Judge—

Case Document

100%Judiciary

HCAL 1653/2019

[2020] HKCFI 2452

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1653 of 2019

BETWEEN

	Torres Joan Libunao	Applicant
	and
	Torture Claims Appeal Board	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 the documents only; or
	consideration of the documents and oral submissions by (counsel for) the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 34-year-old national of the Philippines who last arrived in Hong Kong on 20 May 2009 with permission to remain as a visitor up to 29 May 2009 when she did not depart and instead overstayed, and on 10 June 2009 she surrendered to the Immigration Department and raised a torture claim on the basis that if she returned to the Philippines she would be harmed or killed by her former boyfriend for leaving him, and after her torture claim was rejected, she then sought non-refoulement protection on the same basis.

2.By a Notice of Decision dated 23 July 2018 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“persecution risk”).

3.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her former boyfriend upon her return to the Philippines as low due to the low intensity and frequency of past ill-treatment from him, that it was a private personal dispute between them without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in the Philippines with a large population of 104 million people spread across a vast territory of more than 300,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of the Philippines away from her home district in large cities such as Manila where it would be difficult if not impossible for her former boyfriend to locate her.

4.On 6 August 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the decision of the Director, and for which she attended an oral hearing on 5 March 2019 before the Board during which she gave evidence and answered questions put to her by the Adjudicator for the Board. On 10 June 2019 her appeal was dismissed by the Board which also confirmed the decision of the Director.

5.On 17 June 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form, and in her supporting affidavit of the same date she merely stated that the decision overlooked her serious life threatening situation in her home country without providing any particulars or elaborations as to how it did so or any further ground for her intended challenge.

6.However, before her application could be dealt with by the court, the Applicant on 14 September 2020 filed an affidavit requesting to “cancel” her case as the threats from her former boyfriend have ceased after he left the country and that it is therefore safe for her to return to her home country.

7.In the premises, and as the basis for her claim no longer exists, it would be appropriate for her application to be dismissed, and accordingly I so order.

Dated the 30^th day of September 2020.

(Tam Kam-man)
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 his 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 30^th September 2020 Torres Joan Libunao 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 30^th September 2020 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 12812/18/8/82/F810 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1991/18 (formerly RBCZ 2000585/14)[T5 S135] Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)

Form CALL-1