Case Document

100%Judiciary

HCAL 2301/2018

[2021] HKCFI 64

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 2301 OF 2018

BETWEEN
	Bahi An Annie Rose Celestial	Applicant
	and
	Torture Claims Appeal Board/	1^st Putative Respondent
	Non-refoulement Claims Petition Office
	Director of Immigration	2^nd Putative Respondent

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 submission by the Applicant in open court.

Order by Deputy High Court Judge C P Pang:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.This is an application for leave to apply for judicial review against the decisions of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”). The Director refused the applicant’s claim of non-refoulement protection. The Board dismissed the applicant’s appeal confirming the decision of the Director.

2.The applicant, born in 1979, is a national of the Philippines. She arrived in Hong Kong on 6 April 2016 and overstayed since 21 April 2016. She surrendered herself to the Immigration Department on 6 May 2016 and lodged a non-refoulement claim. She was subsequently released on recognizance.

3.The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at para [8-13] of the decision of the Board. Put simply, the claim was based on the fear that, if refouled, the applicant would be harmed or even killed by six unknown men who threatened her that she would be killed if she refused to pay her husband’s debt. She claimed that her husband was shot and died in October 2014. A week after his death, six unknown men knocked at her door and told her she should settle her husband’s debt. They tied her hands behind her back and pointed a gun to her head to threaten her. She fled to live in other places for 14 months before she left her country for Hong Kong in January 2016.

The Director’s decision

4.By a notice of decision dated 23 June 2017, the Director rejected the applicant’s non-refoulement claim on all applicable grounds for reason that the claim was not substantiated. Having taken into account all relevant circumstances, the Director assessed the level of risk of harm as low. He found that state protection is available to the applicant and internal relocation is a viable option for him. The decision covered torture risk^{^[1]}, BOR 2 risk^{^[2]}, BOR 3 risk^{^[3]}, and persecution risk^{^[4]}. The applicant lodged an appeal/ petition to the Board against the Director’s decision.

The Board’s decision

5.The applicant failed to attend the scheduled oral hearing on 15 June 2018 before the Board without any explanation. She also failed to respond to the Board’s subsequent written request to explain for her absence. As the Board was satisfied that the notice of hearing was properly served on her by post at her last known address, it proceeded to deal with her appeal in her absence on paper.

6.By a decision dated 5 October 2018, the Board rejected the appeal/ petition confirming the Director’s decision. The Board’s decision covered all applicable grounds.

7.The Board gave detailed reasons for rejecting the applicant’s claim at paragraphs [26-28] of its decision. In a nutshell, the reasons can be summarized as follows:

(1)  there are discrepancies in her claim [3];

(2)  in particular, in a statement dated 11 July 2016, she said she had a “land dispute with Bashit Abdul” who threatened to kill her if she returned to the Philippines. However, when asked at the screening interview with an immigration officer about her statement, she responded that she did not say anything about land [5, 20];

(3)  the Board wanted to discuss with the applicant various issues including her inconsistent statements, and what specific information led her to believe that the men and their organization are still looking for her and would be able to locate her if she returns to her country [26];

(4)  failing to testify before the Board and answer questions, she denied the Board the opportunity to better understand her situation and test the truthfulness of her claims [27];

(5)  the Board cannot be satisfied that she is unable to return to the Philippines for the reasons stated [27];

(6)  for these reasons, the applicant’s application on all applicable grounds has not been proven [29].

Application for leave to apply for judicial review

8.The applicant filed a Form 86 on 22 October 2018 for leave to apply for judicial review of the decisions of the Director and the Board.

9.No request for oral hearing has been made. The application is therefore considered on the papers.

10.In the affirmation in support, she stated that she never said she applied for non-refoulement because of a land dispute. She was not present at the hearing before the Board because she never received the letter from the Immigration and the Board. She also alleged that the Board’s decision is biased and unreasonable.

Discussion

11.The relevant principles regarding non-refoulement claims have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14. In particular, the role of the court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board. Assessment of evidence, country of origin information, 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, procedural unfairness or irrationality in the decision of the Board.

12.When the applicant pursued the appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549. Therefore, while the court will examine the decisions of the Director and the Board with rigorous examination and anxious scrutiny, it is unnecessary to delve into the decision of the Director. This decision will only focus on discussing the Board’s decision.

13.In the present case, the Board in fact rejected the applicant’s appeal/ petition on the main grounds that there were inconsistencies in the claims of the applicant and the absence of details why she felt there was an ongoing threat. In the absence of these details and her explanations for her inconsistencies, she failed to prove her claim.

14.As explained above, the assessments of evidence and risk of harm are primarily within the province of the Board and the Director. This court will not interfere with their decisions unless there is a public law ground for the court to do so.

15.The applicant stated she never said she applied for non-refoulement because of a land dispute. I have called for the said statement of the applicant dated 11 July 2016 from the Board. She did say so and she signed with the signature of an interpreter in the statement.

16.The applicant claimed that she did not receive the notice of hearing from the Board. The claim was not supported by any explanation or evidence. There was no suggestion that she had changed her address. I find it incredible. In any event it is the duty of a litigant to give the court an address and update it to which correspondence or notice can come to the litigant’s attention in a timely manner. The consequences of any delay arising from failing to do so will fall upon the litigant.

17.The allegation that the Board was biased and unreasonable has no basis in support at all.

18.All the complaints of the applicant are totally unarguable.

19.Further, even if one gives the claimed account of events the most favourable interpretation, the alleged past ill-treatment or experience were of low intensity and frequency demonstrating at the most a remote and unreal risk of future harm. It came nowhere near the level of severity required by law to constitute torture or CIDTP. There was no valid reason why her late husband’s creditors would still wish to pursue the applicant after so many years and how they can locate her, if she lives in other places of the Philippines.

20.The evidence can hardly establish that the applicant would be at real risk of being subjected to any type of ill-treatment or proscribed harm, if refouled.

21.There cannot be any criticism of the fairness and reasonableness of the decisions of the Director and the Board.

22.Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law, irrational findings, or procedural unfairness in either of them. Nor do I see any failure on their part to apply high standards of fairness in their decisions.

23.For the reasons given, there is no prospect of success in the applicant’s intended application for judicial review.

Disposition

24.Accordingly, leave to apply for judicial review is refused.

Dated 19 January 2021

	(Chung Lai Fan, Christine)
	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 19 January 2021 Bahi An Annie Rose Celestial 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 19 January 2021 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office 1^st Putative Respondent’s ref. no.: USM 7633/17/7/14/F396 Director of Immigration 2^nd Putative Respondent’s ref. no.: QA T/C 1019/17 (Formerly RBCZ 12601/16) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[2] This refers to the risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

Cites 3 cases

Cases cited in this judgment

Nupur Mst v. Director of Immigration