PADACO ROSEMARIE ODLOS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL1612/2018

[2019] HKCFI 1774

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1612 of 2018

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

Following;

	consideration of the documents only;     or
	consideration of the documents and oral submissions by the Applicant in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant (Order by Deputy High Court Judge K.W. Lung):

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review against the respective decisions of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”).

The applicant

2.  The applicant is a national of the Philippines. She arrived in Hong Kong on 24 February 2011 as a visitor and was allowed to stay until 17 March 2011. She overstayed and was arrested by police on 18 April 2011. She had made a torture claim on 20 April 2011, but her application was rejected by the Director on 24 November 2011. She did not return and disappeared. She was arrested again by police on 24 April 2013 and was referred to the Immigration Department. She lodged a non-refoulement on 7 March 2014.

3.  In her statements given to the Director and the Board, she claimed that when she was with her nephew on a roadside, a car suddenly mounted the pavement and hit her nephew, who later died. The driver of the car had contacted her and tried to pay her money for not disclosing him as the driver to the police. She refused to accept the money. The driver then threatened that he might kill her. The driver had attempted to threaten her many times on the phone too. She did not tell her brother who the driver was in fear of being killed by the driver, who was the mayor’s son. On the other hand, her brother also threatened her for disclosure of the identity of the driver. Therefore, if she was to return to the Philippines, she would be harmed or killed by the driver and her brother.

The Director’s Decision

4.  The Applicant had previously made a torture claim and was rejected by an immigration officer, thus 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”).

5.  By Notice of Decision dated 25 August 2017 (“the Director’s Decision”), the Director rejected her claim for the reason that her claim was not substantiated.

The Board

6.  The applicant appealed to the Board and she attended a hearing before the Adjudicator on 9 May 2018.

7.  By Decision dated 9 August 2018 (“the Board’s Decision”), the Board refused her appeal and confirmed the Director’s Decision.

8.  The Board considered the applicant’s case and found that there were many inconsistencies in her evidence given to the Director and in the hearing [58]. The Board accepted that there might be an accident in which her nephew was killed. It did not accept that her brother continued to threaten her for the identity of the driver, nor that the driver had been threatening her not to disclose his identity [72 & 73]

Application for leave to apply for judicial review

9.  In her Form 86 dated 13 August 2018, under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave for judicial review of the Director’s Decision and the Board’s Decision respectively.

10.  In her affirmation in support of her application dated 13 August 2018, the applicant relied upon the following grounds:

(1)   the Director’s Decision and the Board’s Decision are wrong;

(2)   the Adjudicator had not considered her objections to the Director’s Decision;

(3)   she did not obtain assistance on the language as English is not her mother language;

(4)   she was not given any legal assistance for this application;

(5)   the Director was biased when considering the Country of Origin Information; and

(6)   the Board’s Decision was not translated to her.

DISCUSSION

The Director’s Decision

11.  In my view, the applicant is not entitled to apply for judicial review of the Director’s Decision without exceptional circumstances. 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 had held that the applicant, without exceptional circumstances, is not entitled to apply for judicial review of the Director’s Decision because the Board has been established by legislation to deal with appeals against the Director’s Decision and this Board has wider power than this Court to make investigations in the matter. The Board had considered his appeal and made its Decision.

12.  Also, the Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018, having considered the relevant statutory provisions of the Immigration Ordinance, Cap. 115 in relation to the powers of the Director and the Board, decided:

“45. All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. For these reasons we are of the view that the judge was correct to conclude that the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”

13.  Since the applicant has not set out any exceptional circumstances, his application for leave simply fails in limine.

14.  For the reasons above, I dismiss the applicant’s application for leave for judicial review of the Director’s Decisions.

The Board’s Decision

15.  The applicant appeared before me. She confirmed that she had no complaint against either the Immigration officer or the Adjudicator. She understands English and she understood the Board’s Decision. She considered that she had had a fair hearing before the Board.

16.  It is obvious that as the Board rejected her evidence in support of her claim. Without the factual foundation, it is impossible for her claim to succeed.

17.  All the grounds above are irrelevant to the finding of the facts by the Board. They are also inconsistent with what she said in court. The applicant does not have the absolute right to free legal representation at every stage of the proceedings as held by the Court of Appeal in Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22.

18.  The applicant fails to show that she has a reasonable chance of success in her proposed judicial review.

CONCLUSION

19.  Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant her leave to apply for judicial review. Accordingly, 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