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HCAL 1424/2018
[2021] HKCFI 884
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1424of 2018
BETWEEN
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Villalva Alicia Garcia |
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. 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.
2. The applicant applies for leave to apply for judicial review of the Decision dated 3 July 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).
3. The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with her application on paper.
The applicant
4. The applicant is a Filipino national. She had come to Hong Kong and applied for asylum between 2009 and 2013. She returned to the Philippines, abandoning her application. She came to Hong Kong again on 11 October 2014 as a visitor and was allowed to stay until 18 October 2014. On 27 October 2014 and 11 November 2014, she made her non-refoulement claim. However, she did not respond to the immigration officer’s notices. She made a further non-refoulement claim on 24 August 2017.
5. The applicant claimed that, if refouled, she and her daughter’s lives would be in danger due to the threats of the wife of her ex-boyfriend, Andoy. However, this application, for reasons unknown, does not include her daughter. She did not make the non-refoulement claim on behalf of her daughter to the Director. In around 2006, she acquainted with Andoy whilst they were doing trades in the market. She did not know that Andoy was married until in mid-2006, his wife called Melega came to her house to look for Andoy, who was not there at that time. Meleja threatened to kill her if she continued to live with Andoy. Two weeks later, two unknown men came to her house to look for Andoy, who was not there. They shot at the door several times and they left. She reported the matter to police, who did not take any action. One day in mid-2007, she received a phone call from Meleja threatening her that if she did not separate from Andoy, she would kill her. She decided to flee the Philippines for Hong Kong. Details of the incidents are set out in paragraph 8 of the Director’s Decision described below.
The Director’s Decision
6. The Director considered her application in relation to the following risks:
a. risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);
b. 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”);
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 Notice of Decision dated 19 December 2017 (“the Director’s Decision”), the Director refused her claim for the reason that it was not substantiated. The Director found that the level of risk of being harmed or killed if she returned to the Philippines was low [13]; that state protection would be available to her [19] and that internal relocation was an option open to her [23]. Based upon the finding of the facts, the Director rejected her claim on all the risks above.
The Board’s Decision
8. The applicant appealed to the Board against the Director’s Decision. She attended before the Board on 11 April 2018.
9. The Board, having considered her evidence, rejected her appeal and affirmed the Director’s Decision for the reasons that her evidence as inconsistent and unreasonable to be accepted; that because of such inconsistencies, the Board was not satisfied that there would be no real chance that the applicant and her daughter would face serious harm from Meleja or any other persons on behalf of Meleja in the foreseeable future in the Philippines. See paragraphs 8-65.
Application for leave to apply for judicial review
10. The applicant filed Form 86 on 19 July 2018 for leave to apply for judicial review of the Board’s Decision. She said in her affirmation that she disputed the Board’s Decision as it did not consider her dangerous situation.
DISCUSSION
11. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.
12. 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.”
13. The Board has given its reasons for coming to its conclusion that she and her daughter did not have any real risk of harm if they returned to the Philippines. Her grounds in support of this application does not assist her.
14. The Court does not find any error of law or procedural unfairness in the Board’s findings. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.
15. The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.
CONCLUSION
16. I refuse her application for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.
Dated the 8th day of April 2021
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(M. O. WONG)(Ms) |
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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 8 April 2021
Villalva Alicia Garcia
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 8 April 2021
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 9682/17/12/349/F516
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 2822/17 (Formerly RBCZ 11523/17)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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