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HCAL197/2018
[2019] HKCFI 870
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 197 of 2018
BETWEEN
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Clavero Joy Caballero |
Applicant |
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Kay Ransome, Esq. |
Putative Respondent |
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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 Josiah Lam:
Application for leave for judicial review be dismissed.
Observations for the Applicant
Background
1. The Applicant is a national of the Philippines. She is now aged 30 (DOB: 8 September 1988).
2. The Applicant claimed she would be harmed or killed by her ex-boyfriend Eduardo Alvarez (“Eduardo”).
3. The Applicant came to know Eduardo in 2009. They became intimate in December 2010.
4. In April 2012, the Applicant found out Eduardo was a member of an anti-government group called the New People’s Army (“NPA”). The Applicant wanted separation but Eduardo refused. He threatened the Applicant that bad things would happen to her if she left him.
5. The Applicant avoided Eduardo but the latter kept on harassing her. The Applicant left her home town to avoid Eduardo.
6. In September 2012, the Applicant returned home. Eduardo found her and threatened her. She did not complain to the police but decided to leave the country.
7. The Applicant did not think she would be afforded reasonable state protection in the Philippines. Nor was internal relocation viable.
8. The Applicant left the Philippines on 20 February 2013. She went to Macau first and came to Hong Kong on 21 March 2013 as visitor. She overstayed here from 5 April 2013. Twenty-six months later on 24 June 2015, the Applicant surrendered to the Immigration Department. She later raised a non-refoulement claim.
The Director’s decision
9. In his decision dated 7 April 2016, the Director did not accept the Applicant faced any (i) risk of torture,[1] (ii) risk of persecution[2] or (iii) risk of torture or cruel, inhuman or degrading treatment or punishment (BOR3 risk)[3]. He also considered reasonable state protection and internal relocation were available to the Applicant in any event. The Director refused the Applicant's claim with respect to those three applicable grounds.
10. On 12 January 2017, the Director refused the Applicant’s claim with respect to the fourth applicable ground: risk of violation of the right to life (BOR2 risk)[4].
The Board's decision
11. The Applicant appealed to the Board. The Adjudicator interviewed her on 18 January 2017.
12. The Adjudicator considered the Applicant's evidence was vague and unconvincing. She found the Applicant exaggerating and incredible.
13. The Adjudicator did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk.
14. On 25 April 2017, the Adjudicator refused the Applicant’s appeal with respect to all the four applicable grounds.
1st Judicial Review
15. On 19 May 2017, the Applicant applied for leave for judicial review. He named the Adjudicator as respondent and the Director as interested party. The case number was HCAL215/2017.
16. Deputy High Court Judge Woodcock (“the Judge”) heard the Applicant on 26 July 2017.
17. On 4 August 2017, the Judge gave her decision. She had considered the Applicant's complaints under ‘rigorous examination and anxious scrutiny’. She found the Board’s decision was not Wednesbury unreasonable. The Adjudicator made no errors of law and there was no procedural unfairness. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim. The Judge found the Applicant's complaints were not reasonably arguable and she had no realistic prospect of success. The Adjudicator refused to grant the Applicant leave for judicial review.
2nd Judicial Review
18. The Applicant did not appeal against the Judge’s decision in HCAL215/2017. Instead, she reapplied for leave for judicial review on 8 February 2018. This time, the case number was HCAL197/2018. The Applicant again named the Adjudicator as respondent and the Director as interested party.
Grounds of 2nd Judicial Review
19. The grounds of the Applicant's 2nd Judicial Review were contained in her affirmation dated 8 February 2018. They were the same as those grounds set out in her affirmation dated 19 May 2017 for the 1st Judicial Review.
Court hearing of 2nd Judicial Review
20. The hearing took place on 21 August 2018. The Applicant was in person. A Tagalog interpreter provided service in court.
21. The Applicant confirmed all the grounds of judicial review were in the documents.
22. The Applicant confirmed she had not appealed against the Judge’s decision in the 1st Judicial Review. She said she did not know how to lodge an appeal. She reapplied for leave for judicial review because she did not want to go back to the Philippines.
Discussion
23. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
24. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[5] Nevertheless, it is said in Re Islam Rafiqul: –
“The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision-makers are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board. 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.” [6]
Repeated application for leave for judicial review
25. The Applicant's claim had been dealt with by the Director and the Adjudicator. She was not satisfied with their decision. She applied for leave for judicial review on 19 May 2017. The case number was HCAL215/2017.
26. Deputy High Court Judge Woodcock heard the Applicant and gave her decision on 4 August 2017. The Judge had considered the Applicant's case under ‘rigorous examination and anxious scrutiny’. She found the Adjudicator’s decision was not Wednesbury unreasonable. The Adjudicator made no errors of law and there was no procedural unfairness. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim. The Judge ruled the Applicant's complaints were not reasonably arguable. She refused to grant the Applicant leave for judicial review.
27. The Applicant did not appeal against the Judge’s decision. She simply reapplied for leave for judicial review on the same grounds.
28. The Applicant had no good reason for her repeated application for leave for judicial review. She merely did not want to go back to the Philippines. Her unjustified repeated application is an abuse of process. It cannot be entertained.
29. The Judge in the 1st judicial Review had duly considered her complaints. I should not reconsider them.
Conclusion
30. The Applicant cannot justify her repeated application for leave for judicial review. Her application is therefore dismissed.
Dated the 4th day of April 2019
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(Henry Ng)
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
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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 4/4/2019
Clavero Joy Caballero
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 4/4/2019
Kay Ransome, Esq.
Putative Respondent’s ref. no.:
USM 3485/16/4/93/F215
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 118/16 & RBCZ 9001370/16 (formerly RBCZ 14582/15)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] As defined in Part VIIC of the Immigration Ordinance, Cap 115, which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
[2] By reference to the non-refoulement principle under Articles 33 and 1A(2) of the 1951 Convention relating to the Status of Refugees.
[3] Under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] Under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[5] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[6] CACV 219/2018 [2018] HKCA 570, para 14(1).
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