Yamon Riza Raga v. Toture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2757/2018

[2021] HKCFI 2058

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2757 of 2018

BETWEEN

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 13 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 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.

The applicant

4.The applicant is a citizen of the Philippines.  She came to Hong Kong on 7 April 2016 as a visitor.  She overstayed and surrendered to the Immigration Department.  She lodged non-refoulement claim with the Immigration Department by way of written submission received by the Immigration Department on 18 July 2016.

5.The applicant claimed that, if refouled, she would be harmed or killed by her granduncle because of a dispute over a piece of land given to her by her grandmother.  The land was mortgaged to her granduncle for a loan.  She repaid the money through her mother, but her mother did not get a receipt.  Her granduncle refused to return the land to her.  She had a quarrel with him.  She scolded him as a “disrespectful and untrustworthy Buauen government official”.  Her granduncle was furious and slapped her face, causing swelling and redness to her face.  Because of this, she had to leave the Philippines for Hong Kong.  Details of her story are set out in paragraph 8 of the Director’s Decision described below.

The Director’s Decision

6.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”).

7.By Notice of Decision dated 27 March 2018 (“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 her granduncle if she returned to the Philippines [12]; that state protection would be available to her [14]; and that internal relocation was an option open to her [15].  Based upon the finding of the facts, the Director rejected her claim on all the risks above.

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision.  She appeared before the adjudicator of the Board on 15 August 2018.

9.The Board, having considered her evidence, rejected her appeal and affirmed the Director’s Decision.  The Board found that the applicant had no evidence to prove the facts of her case and rejected her claim that her grandmother owned a coconut farm, that her grandmother suffered from diabetes and that her mother had borrowed money from her granduncle [49-51].  The Board also found that state protection would be available to her [54]; that internal relocation was an option open to her [55] and that she did not face a real chance of harm from her granduncle in the foreseeable future [58].  On the basis of the above facts, the Board rejected her appeal.

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

10.The applicant has filed Form 86 dated 4 December 2018 for leave to apply for judicial review of the Board’s Decision.

11.In her affirmation in support of her application, the applicant said that she had difficulty in getting the evidence to support her case; that state protection was not available to her and she had tried it herself; that internal relocation was not an option because she had no means to support herself in other places and life would be hard for her; that she had gone through the psychological trauma of being assaulted by her granduncle.  She said that she was simply asking for mercy to stay in a peaceful environment without fear.

DISCUSSION

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

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 applicant has not set out any error of the Board in the assessment of her case in support of her application.  Her grounds in support of this application do not assist her.

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

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

CONCLUSION

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

Dated the 22^nd day of July 2021

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