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HCAL 1912/2018
[2020] HKCFI 1850
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1912 of 2018
BETWEEN
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Bandojo Mary Grace Mario |
Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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and |
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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 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 dated 31 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).
2. The applicant 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 her application on paper.
3. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 was amended by deleting the Director of Immigration (“the Director”) as proposed respondent and adding the Director as interested party.
The applicant
4. The applicant is a Filipino national. She came to Hong Kong and worked as a domestic helper in 2013. After her employment, she stayed in Hong Kong as a visitor. She overstayed and lodged her non-refoulement claim by way of a written signification dated 11 July 2016.
5. The applicant claimed that, if refouled, she would be harmed by Ramor A Ilagan, the Mayor of Cainta, Rizal, who demanded her family to leave the land where they lived. The facts are in §§6-15 of the Board’s Decision.
The Director’s Decision
6. The Director considered her application in relation to the following risks:
a.risk of torture under Part VIIC 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”).
7. By Notice of Decision dated 22 March 2018 (“the Director’s Decision”), the Director refused her claim for the reason that there were no substantial grounds for believing that she would be harmed upon her return to the Philippines [9]; that state protection was available to her [11] and that internal relocation was an option open to her [14].
The Board’s Decision
8. The applicant appealed to the Board against the Director’s Decision and attended the hearing on 10 July 2018.
9. The Board rejected her appeal and confirmed the Director’s Decision.
10. The Board generally accepted the applicant’s evidence [22]. For the reasons [45-50], found that state protection should be available to her [48]; that there was no substantial ground to believe that there was a real risk that the applicant would be in danger of being subjected to torture in the reasonably foreseeable future. For those reasons, her claim on those risks above were rejected. Below is a summary of its findings.
a.There was no evidence that her stepfather would harm her and her stepfather was not in any way connected with the state.
b.There was no evidence to show that she would be subjected to torture or harm by public official or anyone acting in a specific capacity and therefore she would not have any real risk of harm in the nature of severe pain or suffering.
c.The country of origin information showed that the Philippines had a reasonable system of state protection for her.
d.There was no evidence to show that there is a consistent pattern of gross, flagrant or mass violations of human rights in the Philippines.
Application for leave to apply for judicial review
11. The applicant filed Form 86 on 12 September 2018 for leave to apply for judicial review of the Board’s Decision on the grounds below.
1.Misdirection in the law: the Adjudicator took the view that the applicant had to experience torture in the past for establishing the ground of real risk.
2.Procedural impropriety/unfairness: the Adjudicator failed to carry out sufficient research into the country of origin information with regard to her situations; there being no legal representation for the applicant.
3.Irrationality: the Adjudicator had not given due weight to the country of origin information or cherry-picking information to turn down her appeal; failing to find that a consistent pattern of gross, flagrant or mass violation of human right in the Philippines; failing to analyze state protection; failing to give weight to relevant materials and giving weight to irrelevant materials.
DISCUSSION
12. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny in light of the grounds advanced by the applicant. See paragraph 10 above.
13. 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.”
14. The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178 held that the applicant is not entitled to free legal representation at every stage of the proceedings as she had already had duty lawyer’s service at the screening stage [22].
15. Apart from the lack of legal representation, which will not assist her application in view of the above authority, the other grounds in §11 are her opinions without any evidence or specifics in support of them. They fail. The Court does not find any error of law or procedural unfairness in the Board’s findings. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.
16. The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.
CONCLUSION
17. I refuse her application for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.
Dated the 4th day of August 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 4/8/2020
Bandojo Mary Grace Mario
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 4/8/2020
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 11168/18/4/178/F690
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 470/18 (formerly RBCZ 12607/16)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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