Lardizabal Prim Rose Tamayo v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
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HCAL 1756/2019 [2024] HKCFI 1973 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1756 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 31 May 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”); Notice of Decision issued by the Immigration Department dated 30 July 2018 (“the Director’s Decision”), Supplementary Claim Form issued by the Immigration Department dated 25 June 2018; and Record of Screening Interview issued by the Immigration Department dated 17 July 2018. 2.Under the law, only the Board’s Decision is amenable to judicial review. The Director’s Decision is superseded by the Board’s Decision[1] and the other documents contain no administrative decision. They are dismissed in limine. 3.The applicant requested an oral hearing. However, she was absent at the hearing on 12 June 2024 without prior notice to the court. I shall deal with her application on paper. 4.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 5.The applicant, aged 49, is a Filipino. She arrived in Hong Kong as a visitor on 4 October 2009 and overstayed since 19 October 2009. On 22 October 2009, she was arrested by the police for breach of condition of stay and was subsequently sentenced to imprisonment for a month suspended for 12 months. The applicant made a torture claim on 5 November 2009, which was rejected on 19 July 2013. Her subsequent appeal was also dismissed on 2 September 2013. The applicant lodged a further non-refoulement claim on 11 July 2013. The claim was made on the basis that, if refouled, she would be harmed or even killed by the Kalinga Tribesmen (“the Tribesmen”) because she had a land dispute with them. 6.According to the applicant, her parents purchased a piece of land (“the Land”) with a house (“the House”) in 1980s, which was adjacent to the land belonging to the Tribesmen. Since 1980s, when the applicant’s parents started renovating the House, the Tribesmen had already shown their intention to occupy the Land by threatening her parents with guns. In early 1990s, the applicant was shown some court documents by her parents indicating that one of the Tribesmen had filed a court case against her family regarding the Land and the House (“land dispute case). 7.One day in mid 1990s, about ten Tribesmen walked towards the House and threw stones at the gate. A few weeks later, while the applicant was at the market, she was threatened by one of the Tribesmen armed with gun to be extra careful. Around a month later, the applicant heard gunshot when she was at home with her family. She then saw from the window that three Tribesmen were firing into the air and to the direction of the House. A few days later, the applicant’s sister and her husband made a report to the police, but the Tribesmen continued disturbing the applicant and her family. 8.In around August 2006, the applicant’s father attended court in relation to the land dispute case. When he was about to board his truck after submission of documents at the Barangay Hall, two masked persons in motorbikes emerged and fired shots at him. Her father was killed on the spot as a result. The applicant’s brother-in-law reported the incident to the police. A few months later, two Tribesmen were arrested by the police, but they were released on bail subsequently. Although the applicant and her family did not receive any threats or harm from the Tribesmen after her father’s death, she still believed that she was in danger and started planning a journey to Hong Kong in April 2009. Before leaving the Philippines, the applicant accommodated her children to her mother-in-law’s home, where she did not encounter any of the Tribesmen. Eventually, she arrived in Hong Kong on 4 October 2009. 9.The applicant maintained contact with her family while in Hong Kong. She was informed by her sister in April 2013 that the Tribesmen had sued her parents for the ownership of the Land and the case was ongoing. In the meantime, there were Tribesmen staying in the vicinity of the House. On 16 December 2017, the applicant’s sister told her that the Tribesmen were still seeking for her whereabouts from time to time. 10.The applicant considered internal relocation not viable because she had nowhere to stay apart from the House and was worried that the Tribesmen would acquire their properties if they moved away from the House. The applicant was also of the view that she could not seek protection from the police because they did not help those people who were in similar situation like hers in the past. 11.Details of the applicant’s story can be found in paragraph 8 of the Director’s Decision dated 30 July 2018. The Director’s Decision 12.The Director considered the applicant’s claim in relation to the following risks:
10.By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that the low level of past ill-treatment from the Tribesmen indicated a small future risk of harm upon her return to the Philippines. The Director also considered that the Tribesmen had no real intention to seriously harm or kill the applicant due to the land dispute case because her sister who was handling the relevant lawsuit remain unharmed. In any event, there was also no evidence showing that the death of the applicant’s father was related to the Tribesmen and that her behaviour of staying in the House until 2009 was also inconsistent with that of someone genuinely in fear [14] - [15]. 11.Furthermore, (i) state protection would be available to her upon her return [16] - [20]; (ii) internal relocation would be viable [21] - [22] and (iii) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [23] - [28] or Persecution risk [29] - [33]. The Board’s Decision 12.The applicant appealed the Director’s Decision to the Board. On 17 May 2019, the Board conducted an oral hearing. 13.The Board found that the applicant had nothing to do with the Land as it was the property of her parents. It also noted that nothing eventful happened to the applicant throughout the 26 years she lived in the House and that all the incidents she encountered were at most threats from the Tribesmen. Furthermore, the Board considered that the applicant’s behaviour to apply for protection only after spending four years in Hong Kong was inconsistent with that of someone genuinely in fear [17] - [18]. 14.Based on the findings above, the Board concluded that the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk or Persecution risk [6] - [13], [24] - [33]. In any event, state protection and internal relocation were also available according to the country of origin information [21] - [23], [34] - [38]. 15.The Board therefore dismissed the applicant’s appeal and confirmed the Director’s Decision. Application for leave to apply for judicial review of the Board’s Decision 16.The applicant has filed Form 86 on 25 June 2019 to apply for leave to apply for judicial review of the Board’s Decision. 17.In the affirmation in support of her application, the applicant has raised the grounds below.
DISCUSSION 18.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s 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 Decisions 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.According to the Director’s Decision [9] and [10], the applicant came to Hong Kong on 4 October 2009. She made her torture claim on 5 November 2009, about one month after her arrival. The Board’s comment that she made her torture claim only after 4 years [18] is not correct. In my view, this mistake does not affect a just assessment of the applicant’s claim by the Board. It is only a factor that the Board had taken into account for assessing her credibility. 22.The Board had considered the facts the applicant alleged in paragraph 17. It did not challenge her alleged facts, save that she had the intention of seeking protection in Hong Kong. On the admitted facts, the Board found that her conditions did not comply with the requirements of BOR 2 risk, BOR 3 risk or Persecution risk. The Board further found that state protection would be available to her and internal relocation was viable. 23.As to her grounds in support of her application under paragraph 17, grounds 1, 2, 6 and 8 are her bare assertions or personal comments without any evidence in support. They are not valid grounds[2]. She did not bring shortage of time to the Board and asked for an adjournment. Ground 5 fails. She is not entitled to free legal representation at all stages of the proceeding[3]. She is also not entitled to interpretation service all the time[4]. Grounds 3, 4 and 7 fail too. 24.The applicant therefore fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision. CONCLUSION 25.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 20th day of August 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
Form CALL-1 [1] Re: Moshsin Ali [2018] HKCA 549, Hon Lam VP and McWalters JA, 24 August 2018
[2] The Court of Appeal in Salim Ahmed alias MD Salim [2020] HKCA 244 held:
[3] The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178 held:
[4] The Court of Appeal in Re Khan MD Omar [2019] HKCA 803, 19 July 2019 held:
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Cases cited in this judgment