Duazo Wendell Montilla v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1008/2019

[2023] HKCFI 1902

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1008 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 29 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision).

2.The applicant did not ask for a hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court, I shall 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 last entered Hong Kong as a visitor on 10 May 2017 and was permitted to stay until 24 May 2017. She did not depart and had overstayed since 25 May 2017.  On 29 May 2017, she surrendered to the Immigration Department.  By way of written significations dated 4 September 2017 and 29 November 2017, she lodged a non-refoulement claim.  Her claim was made on the basis that, if refouled, she would be harmed or killed by Argie Ayop because she refused to work for him. 

5.According to the applicant, she started working as a security guard for a bar in 2012.  Apart from her own duties, she also helped her boss to sell drugs.  The bar attracted many customers.  One day in 2016, her friends approached her and inquired of the tips to attract more customers.  She told her friends that they sold drugs inside.  The next day, Argie, the owner of the bar where her friends worked, asked the applicant to work for him with double salary offered.  As the applicant heard that Argie was a notorious gangster leader, she refused.  After the refusal, Argie started sending threatening messages to her.  Thereafter, she learnt that her boss was killed by Argie. One night in mid-2016, while the applicant was drunk resting at home, some unknown men stormed in, punched her and stabbed her stomach.  She had to undergo a surgery on her gallbladder.  She believed that these men were sent from the competitors of the bar.  Out of fear, the applicant fled to Hong Kong for protection.  Details of her claim are set out at paragraph 6 of the Notice of Decision dated 28 September 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 her claim as her claimed fear of harm was groundless.  In elaboration, the Director found that (i) the circumstances as revealed in her evidence denoted that the future risk of harm was small [14]; (ii) state protection would be available to her [15]-[19]; and (iii) internal relocation was a viable option [20]-[21].

The Board’s Decisions

8.The applicant appealed the Director’s Decision to the Board.  On 12 March 2019, the Board conducted an oral hearing for her appeal, during which, while she stated that she did not wish to give evidence, she answered the Board’s inquiries [22]. 

9.Having considered the evidence, the Board identified the flaws in her evidence.  For example, it noted that the applicant had left her place, which was rented, in 2016 and, at the time of the oral hearing in 2019, it was implausible that the alleged enemies were still going to her previous rental room to find her.  Meanwhile, her allegation of continuous interest from the enemies was purely based on hearsay information.  In addition, the death of her boss was irrelevant to her claim.  The Board also noted that the threats from Argie, if any, were localized.  On her own evidence, Argie had already killed her boss who was the direct competitor of his business.  It would serve no useful purpose for Argie to chase her since she had no involvement in the drug business as she only helped pass the drug to the customers [22].

10.In any event, having considered the country of origin information, the Board found that state protection and internal relocation were both available to the applicant [25]-[28]; [40]-[43].

11.For the above reasons, the Board rejected her 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 12 April 2019 for leave to apply for judicial review of the Board’s Decision.

13.In her affidavit in support of her application, the applicant said:

“The decision of the Defendant [the Board] was not acceptable and this is the reason of an appeal of Judiciary Review and new proofs will be presented during the court hearing.”

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 Board, for the reasons given above, had rejected her evidence on the facts of her case. It also found that state protection and internal relocation option were available to her. There is no 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 2^nd day of August 2023

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