Palad Jonalyn Plaza v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 674/2019

[2022] HKCFI 2863

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 674 OF 2019

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 the Applicant 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 12 February 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 Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.The applicant is a national of the Philippines. She entered Hong Kong as a visitor on 6 July 2016 and was permitted to stay until 20 July 2016. She did not depart and had overstayed since 21 July 2016. On 29 November 2016, she surrendered to the Immigration Department. On 21 February 2017, she lodged a non-refoulement claim. Her claim was made on the basis that, if refouled, she would be harmed or killed by the head of the drug syndicate (the “Boss”) whom her husband worked for.

5.According to the applicant, she married her husband Palad Tomas in 2009. In early 2013, there was rumor in their home village that Tomas was working for the drug syndicate. It was until Tomas was arrested did the applicant know the truth. Tomas disclosed his accomplices to the police which irritated the Boss. One day in mid-2015, the applicant was told that Tomas was rearrested for drug trafficking. The Boss was furious as he thought Tomas betrayed them twice and thus threatened to kill all Tomas’ family members. When the applicant’s employment contract in Hong Kong was terminated, her mother informed her of the danger and asked her not to return. Out of fear, she decided to stay in Hong Kong for protection. Details of her claim are set out at paragraph 6 of the Notice of Decision dated 6 March 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

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

(1)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(2)  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

(3)  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

(4)  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 dismissed her claim on the basis that she would not face any real or substantial risk of harm from the Boss if refouled. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [12]-[14]; (ii) state protection would be available to her [15]-[18]; and (iii) internal relocation was also a viable alternative [19]-[20].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 12 December 2018, the Board conducted an oral hearing for her appeal, during which she gave evidence to clarify her claim with the assistance of an interpreter [19].

9.Having considered the evidence, the Board found that the applicant was not a witness of truth [31]. The Board noticed that the applicant gave confusing evidence as to when she resigned from her employment in Hong Kong or when her employment contract was terminated. She also gave inconsistent account as to when Tomas was rearrested [32]. She was vague about Tomas’ first arrest too [34]. It was illogical that the applicant had no knowledge of Tomas’ conviction and sentence as these might be important when considering the safety of her family members [36]-[37]. She was unable to give consistent account as to whether she or her mother reported the threats to the police [38]. Further, on the applicant’s evidence, her family lived safely in Camarines Norte and Camarines Sur [39].

10.Thus, on the basis of lack of credibility, the Board rejected the applicant’s claim and dismissed her appeal.

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

11.The applicant filed Form 86 dated 11 March 2019 for leave to apply for judicial review of the Board’s Decision.

12.In her affirmation in support of her application, the applicant said she rejects the Immigration Department’s decision as they disregarded her dangerous situation.

DISCUSSION

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

14.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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

15.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.”

16.The Board had considered the merits of the applicant’s case and given reasons in support of its conclusion. The Board rejected her evidence on the facts of her case, which means she does not have any factual basis in support of her claim. Her ground in paragraph 12 above in support of her application does not assist her application.

17.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.

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

CONCLUSION

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

Dated the 15^th day of September 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