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HCAL 2172/2018
[2022] HKCFI 531
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2172 of 2018
BETWEEN
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Soriano Debbie Manalo |
Applicant |
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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. The applicant applies for leave to apply for judicial review of the Decision dated 2 October 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).
2. 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.
3. 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.
The applicant
4. The applicant is a national of the Philippines. She entered Hong Kong as a visitor and was permitted to remain until 1 September 2014. She did not depart and overstay since the expiration of her visa. On 22 February 2016, she was arrested by the police. On 24 February 2016, she lodged a non-refoulement claim. The applicant’s claim was made on the basis that, if refouled, she would be harmed or killed by her husband Soriano Rhey.
5. According to the applicant, her husband developed a gambling habit in 2012 and their relationship started to deteriorate. Rhey demanded the applicant to sell her family land to raise money for him and, upon the applicant’s refusal, Rhey threatened to kill her. In October 2012, she was attacked twice by Rhey who even got a knife attempting to stab her. In September 2013, Rhey attacked her again for not signing the land transferal papers. Even when she escaped to her sister’s house in another city, she was chased by Rhey and assaulted. Thereafter, Rhey continued to send threatening messages. Out of fear, she fled to Hong Kong for protection. Details of her story are set out in paragraph 7 of the Director’s Decision and paragraphs 34 to 41 of the Board’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 21 February 2018 (“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 her being harmed or killed by Rhey was assessed to be low [13]-[16]; that state protection would be available to her [17]-[21] and that internal relocation was an option open to her [22] & [24].
The Board’s Decision
8. The applicant appealed the Director’s Decision to the Board. An oral hearing was held on 9 July 2018, during which the Board made inquiries on the material aspects of the applicant’s claim [47]-[62].
9. The Board first noticed her delay in making the non-refoulement claim and found her explanation for such delay non-convincing [65]. The Board identified several inconsistences in the material aspects of the applicant’s claim, such as why she did not report to the police and the extent of her claimed injuries [66]. It also found that the applicant only provided further information when inquired and she failed to provide any documentary evidence as to her title to the land [67]. Thus, the Board rejected her claim that Rhey attacked her for her failure to sell the land. Viewed in totality, the Board refused to accept the applicant as a credible witness [68]. For these reasons, the Board rejected the applicant’s claim on all applicable grounds and dismissed her appeal [69]-[88].
Application for leave to apply for judicial review
10. The applicant filed Form 86 on 9 October 2018 for leave to apply for judicial review of the Board’s Decision.
11. In her affidavit in support of her application, the applicant enclosed the hearing bundle, did not set out any specific ground for her application.
DISCUSSION
12. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.
13. 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 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).
14. 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.”
15. The applicant is unable to state any valid challenge against the Board’s Decision.
16. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.
17. The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.
CONCLUSION
18. 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 23rd day of February 2022
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(Chasel MAN) |
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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 23/2/2022
Soriano Debbie Manalo
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 23/2/2022
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 10585/18/3/37/F620
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 33/18 (formerly RBCZ 11018/16)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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