|
HCAL 2601/2018
[2021] HKCFI 1003
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2601of 2018
BETWEEN
|
Singh Amarveer |
1st Applicant |
|
Singh Mehreen |
2nd Applicant |
|
(minors, by their next friend and motherMahilum Arlyn Aropo) |
|
|
and |
|
|
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
|
and |
|
|
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. Mahilum Arlyn Aropo is the mother (“the mother”) of the applicants, who jointly apply for leave to apply for judicial review of the Decision dated 23 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). The mother applied for non-refoulement claim on behalf of the applicants with the Immigration Department. In the application, the mother confirmed that the applicants would rely on the same set of facts provided by herself in her own application in HCAL 1894 of 2018. See paragraph 1 of the Director’s Decision as described below.
2. The mother 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 their application on paper.
3. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 was amended by replacing the Board with the Director of Immigration (“the Director”) as interesting party.
THE APPLICANTS’ CASE RELIES ON THE FACTS IN HCAL 1894 OF 2018
4. I shall set out the relevant facts in HCAL 1894 of 2018. The applicant below refers to the mother.
“The applicant
4. The applicant is a Filipino national. She came to Hong Kong and worked as a domestic helper on 29 August 2014. Her employment contract was terminated prematurely, but she overstayed since 20 September 2014. On 24 November 2014, she surrendered to the Immigration Department. She lodged her non-refoulement claim on 4 December 2015.
5. The applicant claimed that, if refouled, she would face a life-threatening danger posed from her ex-boyfriend, Maluya Dodong (Maluya) because of her breakup with him.
6. She met Maluya in 2000. Maluya did not have a permanent address and they only met once a month. In 2010, Maluya proposed to marry her. She refused as she knew that he was a drug abuser and seller and she wanted to leave him. Maluya was angry. He hit her with hands and a metal rod. The neighbours came and he left. He threatened to kill her. She did not go to hospital for medical treatment. Nor did she report the matter to police because she had no faith in them. She stayed in her elder sister’s home for six months. Nothing happened. She came to Hong Kong as a domestic helper. In Hong Kong she had another boy-friend and had given birth to two children.”
5. The Director, having considered her evidence, rejected her application on the reasons that the level of risk of harm from Maluya upon her return to the Philippines was low; that state protection was available to her; that internal relocation was an option open to her and that she was unable to establish BOR 2 risk.
6. The mother appealed to the Board. She admitted that Maluya should have no intention of killing her. Having considered her evidence, the Board found that on the whole, her evidence was suspicious and unreliable and it suspected her intention of seeking protection in Hong Kong was not for protection. It came to a conclusion that the main reason for the applicant to leave the Philippines was to earn more money, not to avoid Maluya.
7. The mother applied to this Court for leave to apply for judicial review of the Board’s Decision. This Court had considered her reasons and rejected her application.
THE APPLICANTS’ CASE
The Director’s Decision
8. The Director had considered the applicant’s claim 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”).
9. By Notice of Decision dated 19 October 2017 (“the Director’s Decision”), the Director refused their claim for the reason that there were no substantial grounds for believing that there would be any real and substantial risk of their being harmed or killed by Maluya upon their return to the Philippines [23]; that state protection was available to them [26] and that internal relocation was an option open to them [29].
10. The mother appealed against the Director’s Decision on behalf of the applicants to the Board. By the Board’s Decision, the Board rejected the applicants’ appeal and affirmed the Director’s Decision.
The Board’s Decision
11. The adjudicator of the Board is the same adjudicator hearing the mother’s appeal against the Director’s Decision in her own case, which is the subject matter of HCAL1894 of 2018, in which the Board found the facts. See paragraph 6 above.
12. Since the Board has rejected the facts of the applicants, they have no factual basis in support of their claim. The Board dismissed the applicants’ appeal on all risks.
Application for leave to apply for judicial review
13. On behalf of the applicants, the mother filed Form 86 on 19 November 2018 for leave to apply for judicial review of the Board’s Decision.
14. In the mother’s affirmation in support of the application, she said that she was not satisfied with the decision and she wanted her children to be with their father.
DISCUSSION
15. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.
16. 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.”
17. There is nothing to show that the Board had committed any error in its finding of the facts or in its application of the law to the case.
18. The grounds in support of this application are do not assist their application.
19. The applicants are minor in this case. They were represented by their mother. In Re: Jasvir Singh & Ors [2021]HKCA 53, 14 January 2021, the Court of Appeal held that if the minor issues had been separately and properly dealt with by the Board, the court may dismiss the application, treating the non-compliance with O.80, r.2 of the RHC as a mere irregularity as explained in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, discussed in [57] of Re: Fabio Arlyn Timogan & Ors. V Evan Ruth, Esq, Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office & Anor [2020] HKCA 971, 27 November 2020.
20. The applicants fail to show that they have any reasonable prospect of success in their proposed judicial review.
CONCLUSION
21. Since the applicants’ application for judicial review of the Board’s Decision has no reasonable prospect of success, I refuse to extend time for them to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss their application.
Dated the 3rd day of May 2021
| |
(M. O. WONG)(Ms) |
| |
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 Applicants:
If leave has been granted, the Applicant or the Applicant’s solicitors must: |
|
|
|
|
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)). |
|
Sent to the Applicant
on 3 May 2021
Singh Amarveer
&
Singh Mehreen
(by their mother and next friend Mahilum Arlyn Aropo)
Applicant’s ref. no:
Nil. |
|
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 May 2021
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 9024/17/11/35/IN1697;
USM 9025/17/11/36/IN1698;
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 2840/16 &
QA T/C 1943/17
(formerly RBCZ 13368/16 and RBCZ 10858/17)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
|