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HCAL 2420/2018
[2020] HKCFI 1664
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2420 of 2018
BETWEEN
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Taylan Myra Fe Oviedo |
Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dated 22 October 2018 (“the Board’s Decision”).
2. The applicant is not legally represented and she did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court (“RHC”), by letter, invited the applicant to appear before it in order to explain the above to her. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. In response to the Court’s invitation, the applicant attended the hearing on 26 September 2019.
The applicant
3. The applicant is a national of the Philippines. She had come to Hong Kong and worked as domestic helper before. She then stayed as a visitor. However, she overstayed and was arrested by police on 24 June 2011. She was referred to Immigration Department on 25 June 2011. On 26 June 2011, she lodged a torture claim, which was rejected on 3 February 2012. A removal order was issued on 29 February 2012. On 14 January 2014, she lodged a non-refoulement claim. Since her torture claim had been disposed of, the Immigration Department would not re-consider the Torture risk under section 37U of the Immigration Ordinance, Cap. 115 (“the Ordinance”). The remaining risks of BOR2, BOR3 and Persecution were considered. See paragraph 6 below.
4. She claimed that if refouled, she would be harmed or killed by her husband Roger B. Taylan, a police officer and his political friend Mayor Rudolfo Farinas who is currently a House Majority Leader since she had previously reported them at the Badoc Police Station on illegal drugs activities.
5. She married Roger in 1991. Ever since the marriage, she had been abused by Roger brutally torturing her. On 23 December 2008, she saw Roger who was with another woman in public. She confronted him. He attacked her in front of the woman. She almost fainted in the street. She went to police station. She did not report his attack on her. She reported Roger and Farinas on their illegal drugs activities. She was beaten up by Roger, who used his gun to hit her back. He also pointed at loaded gun at her. In 2009, she came to Hong Kong and worked as a domestic helper. In 2009, Farinas also threatened her that he could easily kill her and her children. He asked her why she reported him to police. Now that she is in Hong Kong, she has been keeping contact with her sons who had left Roger. They told her that Roger was still having a grudge against her and would kill her if she returned to the Philippines.
The Director’s Decision
6. 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 26 March 2018 (“the Director’s Decision”), the Director refused her claim for the reason that her claim was not substantiated.
The Board’s Decision
8. The applicant appealed to the Board against the Director’s Decision and she attended a hearing before the Adjudicator on 13 July 2018.
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, for the reasons set out in the Board’s Decision [83-88], came to the conclusions below.
a.The applicant was not a credible witness and those aspects of her claims were incredible [89].
b.The Board did not accept that she was harmed and threatened with harm by her husband as she claimed [90 (d)].
c.The Board did not accept her claim that she was threatened with harm by Farinas [90 (e)]
Application for leave to apply for judicial review
11. The applicant filed Form 86 dated 31 October 2018 for leave to apply for judicial review of the Board’s Decision.
12. In her affidavit, she did not set out any reasons in support of her application other than that she was the appellant.
DISCUSSION
13. The applicant appeared before me. She said that she was free to state her case before the immigration officer and before the Adjudicator at the Board hearing.
14. I put the Board’s findings to the applicant and asked her if she had any comments. She said that she had no comments.
15. The Court of Appeal in Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14 held that the immigration officer and the Adjudicator are the facts finders. There is nothing amiss in the Board’s assessment of the evidence.
16. The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.
CONCLUSION
17. Since the applicant’s application for judicial review of the Board’s Decision has no reasonable prospect of success, I refuse to grant her leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.
Dated the 22nd day of July 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 22/7/2020
Taylan Myra Fe Oviedo
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 22/7/2020
Torture Claims Appeal Board/ Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 11070/18/4/80/F678
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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