BERMUDEZ EDNA LABADCHAN v. DIRECTOR OF IMMIGRATION

HCAL 2889/2018

[2020] HKCFI 1743

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2889 of 2018

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

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 against the decision of the Director of Immigration dated 18 February 2019 (the “Director’s Decision”).

The applicant

2.  The applicant is a national of the Philippines. On 8 June 2015, she came to Hong Kong as a domestic helper. Her employment contract terminated on 9 August 2018. Since 24 August 2018, she overstayed. She was intercepted by immigration officers and was charged with overstaying without permission. She was convicted of the charge. She lodged her non-refoulement claim dated 18 December 2018.

3.  She claimed that if refouled, her life would be in danger because she would be harmed or killed by Malolos Roberto and the people of the New People’s Army.

The Director’s Decision

4.  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 under RC”).

5.  By the Director’s Decision, the Director rejected her claim for the reason that her claim was not substantiated. The Director took the view that there were no substantial grounds for believing that there would be any real risk of her being harmed or killed upon her return [12]; that there would be state protection for her [17] and internal relocation was an option open to her [22].

The Board

6.  The applicant had not appealed to the Torture Claims Appeal Board pursuant to section 37ZR(b) of the Ordinance, which provides:

“A person aggrieved by a decision of an immigration officer may appeal to the Appeal Board if the decision is made in respect of the person under—

(a) … …;

(b) section 37ZI(1)(b) (decision rejecting a torture claim); or

(c) … ...”

Application for leave to apply for judicial review

7.  In her Form 86 under Order 53, rule 3 of the Rules of the High Court, the applicant applied for leave to apply for judicial review of the Director’s Decision.

8.  In her affirmation in support of her application dated 6 December 2018, the applicant had not stated that there were any exceptional circumstances that entitled her to take out this application without complying with section 37ZR(b) of the Ordinance.

DISCUSSION

9.  In the decision in Haider Zeeshan v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and The Director of Immigration [2018] HKCFI 2647, HCAL 806/2018, 5 December 2018, I held that the applicant could not apply for judicial review of the Director’s Decision without exceptional circumstances.

10.  In Stock Exchange of Hong Kong Ltd. v Onshine Securities Ltd [1994] 1 HKC 319, the Court of Appeal held that where an alternative remedy is available, a party subject to disciplinary proceedings should normally be left to pursue that remedy; judicial review in such a case should only be granted in exceptional circumstances. It further held that if the aggrieved party is not satisfied with the appellate tribunal’s decision, he can then apply for judicial review; but he will succeed only if, taking the procedure (original and appellate) as a whole, it can be seen that the aggrieved party has still not been fairly treated. 330C.

11.  In De Smith’s Judicial Review 7th Edition, Harry Woolf, Jeffrey Jowell, Andrew Le Sueur, Catherine Donnelly and Ivan Hare, Sweet & Maxwell:

At para. 16-018: “The most straightforward substitute remedy is where the legislation provides an appeal. Judicial review is essentially a mechanism to be used where there is no statutory right of appeal. In almost all cases, the Administrative Court will regard a statutory appeal, whether to a court or a tribunal, as a proper substitute for judicial review though exceptional circumstances may dictate otherwise.”

At para. 16-091:  “The tribunal system …intersects with judicial review in two main ways. First, the tribunal system provides a more specialized method of supervising the legality (and in many cases the merits) of decision-making by public authorities…. The Administrative Court will be reluctant to grant permission to proceed with a claim for judicial review. Secondly, judicial review may in some situations be used to challenge the lawfulness of decisions taken by a tribunal.”

At para. 16-020: “The powers of a tribunal or court hearing an appeal will often be at least as extensive as those in judicial review (and perhaps greater). In most situations there can be no constitutional or practical objection to the Administration Court routinely refusing permission to proceed with a judicial review claim where there is a statutory appeal to a tribunal or a court. To hold otherwise would risk subverting Parliament’s intention in creating such appeals. …”

12.  The applicant has not set out any exceptional circumstances.

13.  The applicant’s application for leave to apply for judicial review of the Director’s Decision therefore fails in limine. I dismiss her application.

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