Re Cananola Lida Balboa

HCAL 129/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 129 OF 2013

____________

____________

_______________

J U D G M E N T

_______________

1.This is an application for leave to apply for judicial review against the decision of the Director of Immigration (hereinafter called the Director) and the Adjudicator to dismiss the claim of the Applicant made under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).

2.In her Notice of application for leave to apply for judicial review (Form 86) dated 30 August 2013, the Applicant named the Petition Team of Security Bureau on behalf of the Immigration Department as the proposed Respondent.

3.However, from the relief sought as indicated in her Affirmation made on the same day, it is clear that it was the intention of the Applicant to apply for judicial review of the decisions of :

1.   The Director of Immigration; and

2.   The Adjudicator.

4.Having ascertained at the hearing that it was indeed the case, what I have considered is whether leave should be granted for the Applicant to apply for judicial review against the decisions of the Director and the Adjudicator.

BACKGROUND

5.The Applicant is a Filipina national now 51 years of age. 

6.She arrived in Hong Kong on 19 July 2007 to work as a domestic helper.  Her employment contract was prematurely terminated on 27 June 2008.

7.She did not leave and since then overstayed in Hong Kong.

8.She lodged her torture claim on 30 October 2009, claiming that her life would be in danger if she was refouled to the Philippines.

9.By a Notice of Determination dated 9 December 2011, the Director refused her claim.  He was not satisfied that the assertion of real risk of torture had been made out.

10.She then appealed against that decision by way of petition to the Chief Executive.

11.On 19 January 2012, her petition was rejected by the Adjudicator, under the authority delegated by the Chief Executive, without an oral hearing.  The main reason of the Adjudicator’s decision was that the fear was of ill-treatment from two money lenders, and there was no evidence of any state involvement at all.  The Adjudicator did not consider deterioration of the applicant’s health, in the absence of other factors amounting to degrading treatment in violation of Article 16 of CAT, sufficient to justify the claim.

ALLEGATIONS MADE BY THE APPLICANT

12.In her Affirmation, the Applicant stated the followings :

1.   Around 1980, her father borrowed money from Muslim money lending businessmen.  Owing to failure of repayment, the Muslims shot at her house and made holes on the wall, causing her father to die from heart attack.

2.   After having made a report to the Police, they moved to live in Manila for fear of risk.

3.   From 1997 to 2006, she came to Hong Kong to work as a domestic helper.

4.   In 2005, she returned to the Philippines to have an operation for kidney transplant.

5.   To fund the operation, she borrowed 250,000 pesos from two persons, Mr Moner and Mr Ali.

6.   Thinking that if she does not repay, these persons would cause her harm, she came to Hong Kong to work again.  She said that these people were powerful and were connected with the local government and the police.

7.   Mr Moner and Mr Ali kept sending threatening letters to her.

8.   On 27 June 2008, her employment contract was terminated since she was suffering from ill health.

9.   For fear of the loan sharks, she did not return to her country.  She said she could not stand any more pressure due to her ill health.

10.   On 11 October 2011, she married a Hong Kong resident.

11.   In the circumstances, she felt it a travesty of justice and contrary to natural law and the spirit of common humanity and brotherhood to refuse her tourture claim and refoul her.

12.   She also wanted to make a claim for the right not to be subjected to cruel, inhuman or degrading treatment or punishment, persuant to the decision of Ubamaka v Security for Security[1].

13.There was a delay in this application.  The applicant put forward the following reasons :

1.   She has been waiting for approval of her dependant visa,

2.   Her health condition and mental condition were too poor and she had to be hospitalised from time to time.

RELIEF SOUGHT

14.The Applicant seeks the following relief :

1.   an Order of Certiorari to bring up and quash the said determination of the Director;

2.   an Order of Certiorari to bring up and quash the said decision of the Adjudicator;

3.   an oral hearing of this Application if leave is not granted on paper (and thus this hearing); and

4.   such further or other remedy, relief or order as may be just and expedient in the circumstances.

THE HEARING

15.At the hearing, the Applicant appeared in person. She said she had nothing to add and would rely wholly on what she had stated in her Application and Affirmation. 

CONSIDERATION

16.I have considered the content in the Form 86 and the material filed by the Applicant, and perused the content and related papers in the Notice of Decision of the Director and the Decision of the Adjudicator.

17.In my judgment, the Director, and in particular the Adjudicator, in making their decisions have correctly directed themselves on the relevant legal principles and had regard to all relevant considerations. 

18.The Applicant has not persuaded me that the decisions can be argued as unreasonable in the Wednesbury[2] sense.  Nor has she persuaded me that there is any reasonably arguable ground that the decisions should be quashed on any public law reason.

19.There is also nothing to persuade me that the Adjudicator erred in not conducting an oral hearing before making of her decision.

20.In my judgment, the Applicant failed to show that her grounds of judicial review are reasonably arguable with a realistic prospect of success[3].

21.The Applicant stated that she also wanted to make a claim for the right not to be subjected to cruel, inhuman or degrading treatment or punishment (which is commonly known as a CIDTP claim), pursuant to the decision of Ubamaka v Security for Security.  This Court of Final Appeal decision changed the understanding as to the obligations on the part of the Director of Immigration in exercising his power to remove a person advancing grounds which may come within this claim.  The decisions of the Director and the Adjudicator were based on previous understanding of the law and therefore the CIDTP claim had not been considered.  However, as said by Lam VP in RI[4], in a case of judicial review, the court is exercising a supervisory jurisdiction.  As there had been no determination by the primary decision maker, and it is possible for the applicant to submit her CIDTP claim, it is pre-mature for the court to entertain such claim by way of judicial review. For this reason, I do not consider it a ground to grant leave to apply for judicial review.

CONCLUSION

22.The application for leave to apply for judicial review is therefore refused.

The applicant, in person