Case Document

100%Judiciary

HCAL 2695/2018

[2021] HKCFI 1419

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2695 of 2018

BETWEEN

	Chua Berbina Gavino	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 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 dated 16 October 2017, which is the Director’s Decision as described below. In fact, her application should be against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dated 4 February 2019 (“the Board’s Decision”) because once she had appealed against the Director’s Decision to the Board, she cannot apply to the court for judicial review of the Director’s Decision. See Re: Moshsin Ali [2018] HKCA 549 §45.

2.There is another problem with her application. She filed Form 86 even before the Board issued its Decision. In the circumstances, in order not to delay her application due to the procedural technicalities, this Court, in exercising its powers under Order 1B, rule 1(2)(c) & (l) of the Rule of the High Court (“RHC”), had written a letter dated 14 April 2021 to her requesting her to attend the Court to amend Form 86 and to submit further grounds in support of her application against the Board’s Decision since her affirmation is only in relation to the Director’s Decision. She replied by a letter received by the Court on 10 May 2021, saying that she will not attend the Court. She set out the grounds in support of her application against the Board’s Decision, which will be set out below for discussion.

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

4.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent, the Director of Immigration (“the Director”) is the interested party and the relief sought is for judicial review of the Board’s Decision.

The applicant

5.The applicant is a citizen of the Philippines. She came to Hong Kong as a visitor on 28 February 2013. She overstayed and surrendered to the Immigration Department on 10 June 2015. She lodged her non-refoulement claim with the Immigration Department on 10 August 2015.

6.The applicant claimed that, if refouled, she would be harmed or killed by her step brother Jay Mar, who had sexually molested her and even attempted to rape her. She fled to her brother in Butuan City and to live in her friend’s place in Manila. She then came to Hong Kong. She has been in contact with her mother and her brother. Her brother told her that Jay Mar is still looking for her. Details of her story are set out in paragraph 6 of the Director’s Decision below.

The Director’s Decision

7.The Director considered her application in relation to the following risks:

a. risk of torture under Part VII C 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 16 October 2017 (“the Director’s Decision”), the Director refused her claim for the reason that it was not substantiated. The Director found that there were no substantial grounds in believing that she would face the risk of harm from Jay Mar if she returned to the Philippines [10]; that state protection was available to her [17] and that internal relocation was an option open to her [18].

The Board’s Decision

9.The applicant appealed to the Board against the Director’s Decision. She appeared before the adjudicator of the Board on 23 October 2018.

10.The Board, having considered her evidence, rejected her appeal and affirmed the Director’s Decision. The Board found that the acts as the applicant alleged did not attained the degree of severity in pain or suffering within the definition of torture [59]; that the state was not involved [63 & 74]; that state protection was available to her [83]; that internal relocation was an option open to her [93]; that there was no evidence to show that she was subjected to BOR 2 risk if she returned to the Philippines [98] and that she was not subjected to Persecution risk [107].

Application for leave to apply for judicial review of the Board’s Decision

11.The applicant has filed Form 86 dated 28 November 2018 for leave to apply for judicial review of the Director’s Decision. The deficiencies of her application have been identified and rectified as mentioned in paragraph 1-4 above.

12.In her letter to the Court, the applicant set out the grounds in support of her application. I accept the grounds as evidence as if they were in her affirmation. She said in her letter that Jay Mar is still looking for her. He made different accounts in social media about her making his family miserable. She further said that because of the above, she is suffering from insomnia. Her life is still in danger as Jay Mar still wants to take revenge on her.

DISCUSSION

13.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

14.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.”

15.The applicant’s reasons for her application do not assist her as the Boarding’s finding of the facts is against her.

16.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.

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

CONCLUSION

18.I refuse to extend time for the applicant to make her application for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

Dated the 27^th day of May 2021

	(M.O. WONG)(Ms)
	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 27 May 2021 Chua Berbina Gavino 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 27 May 2021 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 8891/17/10/221/F465 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1799/17 (Formerly RBCZ 12890/15) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)