Lumbera Amalia Martinez v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 1341/2019 on BabelCite. This High Court CFI judgment.
1. The applicant applies for leave to apply for judicial review of the Decision dated 6 March 2017 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s First Decision as described below (“the Board’s First Decision”), which dealt with her claim on Torture risk, BOR 3 risk and Persecution risk. The applicant’s application filed on 20 May 2019 is out of time. The delay is more than one year and four months. This issue w
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HCAL 1341/2019 [2024] HKCFI 714 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1341 of 2019
Application for Leave to Apply for Judicial Review NOTIFICATION of the Judge’s decision (Ord. 53 r. 3) Following;
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 6 March 2017 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s First Decision as described below (“the Board’s First Decision”), which dealt with her claim on Torture risk, BOR 3 risk and Persecution risk. The applicant’s application filed on 20 May 2019 is out of time. The delay is more than one year and four months. This issue will be dealt with below. 2.The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, her application is therefore dealt with 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 last entered Hong Kong on 12 August 2012 as a visitor and was permitted to stay until 26 August 2012. She did not depart and had overstayed since 27 August 2012. On 15 May 2014, she was arrested by the police for overstaying. On 4 June 2014, she lodged a non-refoulement claim. Her claim was made on the basis that, if refouled, she would be harmed or killed by a Japanese man called Yuri Moto because she had a relationship with his wife Juliet Moto. 5.According to the applicant, she was in an extramarital relationship with Juliet who was married to Yuri. She claimed that most of the time Yuri was alone in Japan and thus she would usually spend time with Juliet. They were able to keep their relationship for around 2.5 years until 22 October 2011. On that date, the applicant was assaulted by three masked men. She was informed by Juliet that they were sent by Yuri. As Yuri was connected with the police, the applicant did not complain the incident to the police. However, the applicant and Juliet still stayed together when Yuri was away. In around mid-March 2012, Yuri returned to the Philippines. A few weeks later, Juliet told her that Yuri knew about their relationship and would kill the applicant if he saw her. As a result, Juliet financed the applicant’s flee to Hong Kong. Details of her claim are set out at paragraph 6 of the Notice of Decision dated 20 May 2015 by the Director (the “Director’s First Decision”). The Director’s Decisions 6.The Director considered the applicant’s claim in relation to the following risks:
7.By way of the Director’s First Decision, the Director dismissed the applicant’s claim on the grounds of Torture risk, Persecution risk and BOR3 risk. In elaboration, the Director found that (i) the level of risk of harm was assessed to be low [13]-[17]; (ii) state protection would be available to her [18]-[19]; and (iii) internal relocation was a viable alternative [20]-[26]. 8.For reasons set out in the Notice of Further Decision dated 4 May 2017, the Director found that the applicant’s right to life would not be violated and dismissed her claim on BOR2 risk (the “Director’s Second Decision”). The Board’s Decisions 9.The applicant first appealed the Director’s First Decision to the Board. Having considered all the information, the Board decided that it could fairly dispose of this appeal on papers without an oral hearing [38]. 10.The Board found that the applicant failed to provide evidence which linked the assault to Yuri [41]; that Yuri was only a businessman and there was no state involvement [42]; that the alleged threats were not directed at the applicant but only through Juliet [43]; and that the applicant was not adversely targeted by the government [44]. It further considered that the Philippine government can offer protection to the applicant [45]-[51]. Meanwhile, there was no state acquiescence [52]-[58] and internal relocation was a viable option [66]-[81]. In passing, the Board also rejected that the applicant had fear of risk of harm in her mind [69]-[70]. 11.For the above reasons, on 6 March 2017, the Board rejected the applicant’s claim on Torture risk, Persecution risk and BOR3 risk and dismissed her appeal (the “Board’s First Decision”). 12.In dealing with the applicant’s appeal against the Director’s Second Decision, the Board found that the dispute was a private one without state involvement; that there was no state acquiescence; and that state protection was available to her [10]. In these premises, on 16 May 2019, the Board also rejected the applicant’s claim on BOR2 risk and dismissed her appeal (the “Board’s Second Decision”). Application for leave to apply for judicial review of the Board’s Decision 13.On 20 May 2019, the applicant filed Form 86 for leave to apply for judicial review of the Board’s First Decision. 14.The applicant has filed an affidavit, in which she said she rejected the Board’s First Decision as it disregarded her dangerous situation. 15.The Director had also considered the applicant’s claim on BOR 2 risk and by the Director’s Second Decision rejected her claim. The applicant had also appealed the Director’s Second Decision to the Board. The Board, by the Board’s Second Decision, rejected her appeal. However, the applicant did not apply for leave for judicial review of the Board’s Second Decision. 16.Since the Board’s First Decision and the Board’s Second Decision (“the Board’s Decisions”) are the applicant’s non-refoulement claim application based on the same set of facts, the Court will consider the Board’s Decisions together in order to assess the merits of her application. DISCUSSION 17.As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of the applicant’s case. 18.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). 19.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. 20.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
21.The Board had, in the Board’s Decisions, given its reasons for dismissing the applicant’s claim. 22.The applicant’s grounds in paragraph 14 are not valid reasons to challenge the Board’s Decisions. There is no reason that this Court should interfere with the Board’s Decisions. 23.The applicant fails to show that she has any realistic prospect of success in her proposed judicial review. CONCLUSION 24.I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s First Decision. Accordingly, I dismiss her application. Dated 7th day of March 2024.
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
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