Villasanta Daisy Lumbera v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 909/2019

[2022] HKCFI 1211

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 909 of 2019

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 28 March 2019 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 national of the Philippines.  She entered Hong Kong as a visitor on 3 September 2009.  However, she did not depart and had overstayed since 18 September 2009.  On 24 February 2010, she was arrested by the police.  On 12 March 2010, she lodged a torture claim which was rejected on 3 May 2013.  On 3 June 2013, she lodged a non-refoulement claim.  Her claim was made on the basis that, if refouled, she would be harmed or killed by the moneylender.

5.According to the applicant, she had taken out two loans from different banks.  The first loan was in 2000 under her name but she was only helping her cousin.  The second loan was in 2002 when she used to build the family house. However, her employment was terminated in 2006 and was unable to repay the loans.  The banks started sending her letters for repayment.  The applicant confirmed that she was never physically harmed by them.  As they continued sending letters of demands, the applicant fled to Hong Kong for protection. Details of her claim are set out at paragraph 9 of the Notice of Decision dated 6 July 2018 by the Director (the “Director’s Decision”) and paragraphs 35 to 55 of the Board’s Decision as described below.

The Director’s Decision

6.The Director considered the applicant’s claim in relation to the following risks:

(1)     risk of violation of the right of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (“BOR 2 risk”);

(2)     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

(3)     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 way of the Director’s Decision, the Director refused her claim.  The Director rejected that she would face any real risk of harm from the banks upon refoulement because (i) the absence or low frequency and intensity of past ill-treatment indicated an unlikelihood of future risk of harm [16]-[18]; (ii) state protection would be available to her [19]-[23]; and (iii) internal relocation was an option open to her [24]-[29].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 9 January 2019, the Board conducted an oral hearing for her appeal.  In her notice of appeal/petition, the applicant further added to her claim that (i) she had bad health; and (ii) there was a pending court case for her falsification of public documents offence [54].

9.The Board explored the material aspects of the applicant’s claim and sought clarifications from her [59]-[92].  Having considered her evidence, the Board found that she was not a witness of truth [96].  The Board found that, on a reasonable interpretation of the applicant’s evidence, the criminal charge against her was dropped [97]-[104].  In any event, a criminal prosecution would not amount to persecution [105].  Insofar as the claim on the bank loans was concerned, the Board considered the applicant’s evidence to be inconsistent and lacked documentary proof [106]-[107].  It concluded that the applicant did not take out the alleged loans and, even if she did, the default would not lead to her imprisonment [108]-[111].  For these reasons, the Board rejected the applicant’s claim and dismissed her appeal.

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

10.The applicant has filed Form 86 dated 3 April 2019 for leave to apply for judicial review of the Board’s Decision.

11.In her affirmation in support of her application, the applicant said the Immigration Department disregarded her problem in the Philippines.

DISCUSSION

12.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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 Board has given reasons for its Decision. There is no valid reason from the applicant to challenge the Board’s Decision.

16.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.

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

CONCLUSION

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

Dated the 3^rd day of May 2022

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