Case Document

100%Judiciary

HCAL 26/2019

[2023] HKCFI 242

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 26 of 2019

BETWEEN
	Tovar Blanco Sabrina Thaibys	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 21 December 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 national of Venezuela. She entered Hong Kong as a visitor on 15 April 2018 and was permitted to remain until 14 July 2018. On 15 May 2018, she was arrested by the police for the offence of soliciting for immoral purpose. On 22 June 2018, she lodged a non-refoulement claim. Her claim was made on the basis that, if refouled, she would be harmed or killed by Katiuska.

5.According to the applicant, she was arranged by Katiuska to work in Hong Kong as a prostitute in 2018 so that she could alleviate her financial problems. When she came to Hong Kong, she met with Katiuska’s people and started working as a sex worker. In May 2018, she was arrested by the Hong Kong police and provided information about the prostitution business. Thereafter, she was informed by her mother that some unknown people visited her house and verbally threatened her family. They also threatened to kill the applicant as she cooperated with the Hong Kong police. Out of fear, the applicant stayed in Hong Kong for protection. Details of her claim are set out at paragraph 6 of the Notice of Decision dated 31 August 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:

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

b.  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”);

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 way of the Director’s Decision, the Director dismissed the applicant’s claim as the level of risk of harm upon her refoulement was assessed to be low. In elaboration, the Director found that (i) the past events indicated that Katiuska had no intention to materialize the threats against her [11]; (ii) state protection would be available to her [12]-[14]; and (iii) internal relocation was a viable alternative [15]-[20].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 11 December 2018, the Board conducted an oral hearing for her appeal.

9.The Board recapped the applicant’s claim [8]-[10]. After considering all the evidence, the Board concluded that, even if it accepted the applicant’s version of past events, she still failed to establish her non-refoulement claim [16]. In particular, the Board observed that the applicant was unable to provide the details of the people who arranged her to perform the sex work and she was unable to recollect what she said to the police when she was arrested [17]-[28]. She agreed with the country of origin information (“COI”) considered by the Board [29]-[35].

10.The Board noted that the applicant failed to adduce evidence showing that Katiuska threatened her family and such assertion was based on hearsay information [36]. It also found that there was no evidence that Katiuska had ill-treated her nor was the state involved in the alleged dispute [38]-[40]. Meanwhile, the applicant’s assertion that the Venezuelan police would not assist her was groundless [41]-[42]. Besides, there was no evidential support for Katiuska’s operation of this illegal activity [44]. In any event, the Board concluded that internal relocation was not unduly harsh for the applicant [68]-[77].

11.For the above 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

12.The applicant has filed Form 86 dated 4 January 2019 for leave to apply for judicial review of the Board’s Decision.

13.In her affirmation in support of her application, the applicant said the Board’s Decision is unfair.

DISCUSSION

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

16.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.”

17.The reason stated in paragraph 13, supra is only the applicant’s opinion without any evidence in support and is not a valid ground to challenge the Board’s Decision.

18.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.

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

CONCLUSION

20.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 31^st day of January 2023

(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 31/1/2023 Tovar Blanco Sabrina Thaibys 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 31/1/2023 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 13407/18/9/168/VEN2 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 3259/18 (Formerly RBCZ/10624/18) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)