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HCAL 555/2019
[2020] HKCFI 1012
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 555 of 2019
BETWEEN
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Merino Natividad Dangbis |
Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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and |
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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;
Order by Deputy High Court Judge K.W. Lung:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
THE APPLICATION
1. This is the applicant’s application for leave to apply for judicial review of the Decision dated 22 February 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).
2. Leave was given to the applicant to amend Form 86 by replace the Board with the Director of Immigration (“the Director”) as the interested party.
The applicant
3. The applicant is a Filipino national. She had been a domestic helper before and she commuted between China and Hong Kong after her employment in 2003. She last came to Hong Kong on 27 February 2005 as a visitor. She overstayed since 1 March 2005. She surrendered to the Immigration Department on 24 August 2009. On 12 July 2013, she raised a non-refoulement claim.
4. She claimed that if refouled, she would be harmed or killed by her neighbouring family, in particular Antonio Almoza and his men.
5. The incidents took place as set out below.
a. In 2004, her mother had transferred a piece of land to her and there was document evidence in support of her ownership. She went to Hong Kong for sightseeing. Her mother told her that her neigbhour, Antonio Almoza harassed her for the land and advised her not to return to the Philippines.
b. Antonio kept on harassing her mother from time to time. Her mother had brought this to the attention of the head of the village, who had warned Antonio to stop harassing her. But Antonia turned a deaf ear to his words. She remained in Hong Kong and dared not return to the Philippines.
c. Her mother passed away in 2017. She had contact with her youngest daughter in the Philippines, who told her that Antonio kept threatening and harassing the family.
The Director’s Decision
6. Since she had lodged a torture claim similar to Part VIIC of the Immigration Ordinance (“the Ordinance”) and failed both before the Director and the Appeal Board, the Director considered her application in relation to the following risks:
a. Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);
b. 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
c. 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 Notice of Decision dated 18 May 2018 (“the Director’s Decision”), the Director refused her claim for the reason that her claim was not substantiated. The Director took the view that the level of risk upon her return to the Philippines was low [18]; state protection [21] and relocation [22] were available to her.
The Board’s Decision
8. The applicant appealed to the Board against the Director’s Decision. She attended a hearing before the Adjudicator on 17 January 2019.
9. By the Board’s Decision, the Board rejected her appeal and confirmed the Director’s Decision.
10. The Board considered the applicant’s evidence and was of the view that the applicant’s evidence in relation to the facts in support of her claim was not acceptable. For the reasons given, it rejected her evidence on the facts as it found that her evidence was hearsay, exaggerated and illogical, just a figment of her imagination. See paragraph 21 of the Board’s Decision.
Application for leave to apply for judicial review
11. The applicant filed Form 86 dated 27 February 2019 for leave to apply for judicial review of the Board’s Decision.
12. In her affirmation in support of the application, she relied upon the grounds below.
1. Procedural impropriety: failure to conduct sufficient inquiry into the relevant country of origin conditions. The Board failed to consider BOR 2 claim.
2. Procedural impropriety/irrationality: failed to give reasons for BOR 3 risk or fail to show sufficient basis to support its conclusion.
3. Error /Misdirection in law: failing to take into account the psychological strain and threats to her personally.
4. No sufficient basis to conclude that she would not be subjected to torture or BOR 3 risk.
DISCUSSION
13. The applicant appeared before me and she confirmed that she was free to express herself before the immigration officer and the Board. She can read English herself and she understands the Decisions.
14. I also put the Board’s findings to her and asked her if she had any comments on them. She said that she did not have any comments.
15. 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.”
16. The Court of Appeal in Re: Moshsin Ali [2018] HKCA 549 (CACV 54/2018) at §42 held that the Board’s decision is final, subject to judicial review by the court. However, there is no evidence to show that the Board erred in its finding of the facts or in the application of the laws to the case.
17. Grounds (1) and (4) are her opinions without any evidence to support them. Ground (2) is not true as the Board had given reasons for BOR 3 risk. Ground (3) was not raised before the Board. It is irrelevant.
18. The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.
CONCLUSION
19. Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant her leave to apply for the intended judicial review. Accordingly, I dismiss her application.
Dated the 3rd day of June 2020
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(Mike Mak) |
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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: |
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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)). |
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Sent to the Applicant
on 3/6/2020
Merino Natividad Dangbis
Applicant’s ref. no:
Nil. |
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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 3/6/2020
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 11756/18/5/341/F734
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 963/18 (formerly RBCZ 2001727/14)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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