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HCAL 2427/2018
[2020] HKCFI 1727
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2427 of 2018
BETWEEN
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Racimo Melanie Narciso |
1st Applicant |
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Domingo Darryl Racimo |
2nd 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 Applicants:
THE APPLICATION
1. The applicants apply for leave to apply for judicial review of the Decision dated 16 October 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).
2. The applicants are not legally represented and they 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 applicants to appear before it in order to explain the above to them. 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 applicants attended the hearing on 11 October 2019.
3. Leave was granted to the applicants to amend Form 86 by replacing the Immigration Department in the column for the respondent with the Board and replacing the Immigration Department by the Director of Immigration (“the Director”) as interested party.
The applicant
4. The first applicant is a national of the Philippines and the second applicant is her son. The son’s application relies on the evidence of his mother and his application will rise and fall with that of his mother. For brevity, I shall therefore refer to the first applicant’s facts and evidence unless otherwise stated.
5. She came to Hong Kong on 8 August 2010 as a domestic helper and was permitted to stay as such until 27 April 2011. Her contract was prematurely terminated, but she overstayed since 25 February 2011. She was arrested by police for offences which she was sentenced to four weeks’ imprisonment. She submitted her torture claim protection on 23 January 2012 under Part VIIC of the Immigration Ordinance, Cap. 115 (“the Ordinance”) and was rejected by the Director. She appealed to the Petition Team of Security Bureau and was rejected on 12 November 2012.
6. Her son was born in Hong Kong on 28 January 2006, but his permanent resident status of Hong Kong was not established. He was permitted to stay as a temporary resident until 23 March 2011. He overstayed. She submitted torture claim on behalf of her son on 28 May 2012. On 5 April 2013, his application was rejected. On appeal to the Board, his appeal was rejected on 19 June 2013.
7. This is their joint application for non-refoulement by way of written representation. Since they had made torture claim protection under Part VIIC of the Ordinance, their application for non-refoulement would be considered for other risks as set out below.
8. She claimed that if refouled, she would be harmed or killed by Susan, who is the wife of Darrly’s father, Teddy. Susan would also want to sue her for seducing her husband.
9. She met Teddy in Hong Kong and they had relationship in 2005. In 2005 she discovered that she was pregnant. She asked Teddy to marry her. Teddy told her that he was married. However, they maintained their relationship until 2009. Darryl was born on 28 January 2006.
10. In 2010, a friend of hers told Terry’s wife, Susan who was in the Philippines working for a government high official her relationship with Teddy. Between 2010 and 2017, Susan had been harassing her and her mother with threats that she would kill her and Darryl if they returned to the Philippines.
11. She considered that she would not get protection from police as she had no money. Nor would she be able to relocate herself as she no connection elsewhere. Darryl has been studying in Hong Kong. He does not speak the languages of the Philippines.
The Director’s Decision
12. The Director considered their 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”).
13. By Notice of Decision, the Director refused their claim for the reason that their claim was not substantiated; state protection was available to them and relocation was an open option to them. See paragraph 25 -28 of the Director’s Decision.
The Board’s Decision
14. The applicants appealed to the Board against the Director’s Decision and she attended a hearing before the Adjudicator on 15 August 2018. All parties were legally represented and the Board heard the full argument.
15. By the Board’s Decision, the Board rejected their appeal and confirmed the Director’s Decision.
16. The Board considered the applicants’ evidence and, for the reasons set out in the Board’s Decision, came to the conclusion that it did not accept the first applicant’s facts in support of her application, such as the partner was married to a woman called Susan and that Susan had harassed her throughout the period she claimed. See paragraphs 53 to 65 of the Board’s Decision. As to the second applicant, the Board had considered submissions of his legal representative and his school principal’s recommendations. Whilst the Board was sympathetic with the second applicant, it did not accept that the language problem, having to fit in a strange environment, stress unease, loneliness and apprehension might amount to the proscribed harm [72]. See paragraphs 66-80 of the Board’s Decision.
Application for leave to apply for judicial review
17. The applicants filed Form 86 dated 1 November 2018 for leave to apply for judicial review of the Board’s Decision.
18. In her affidavit in support of their application, she asked the Court to review their case. She did not set out any errors committed by the Board in the assessment of their case.
DISCUSSION
19. The applicants appeared before me. The first applicant said that she was free to state her case before the immigration officer and the Adjudicator at the Board hearing. She was legally represented before the Board in any event.
20. The second applicant had submitted a hand-written letter to this Court for consideration. In his letter, he repeated the grounds in support of his mother’s application. He further said that he would be under immense stress and he would not be able to protect his mother. He could not sleep well and he was anxious for his life and his future. He used to excel in his study, but his academic performance had been affected. Also, his hands shook because of nervousness. He asked the Court to review their application.
21. 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.”
22. Having considered the Board’s Decision with vigorous examination and anxious scrutiny, I find nothing amiss in the Board’s evaluation of the evidence and assessment of the matter.
23. The applicants fail to show that they have or either of them individually has any reasonable prospect of success in their proposed judicial review.
CONCLUSION
24. Since the applicants’ application for judicial review of the Board’s Decision has no reasonable prospect of success, I refuse to grant them leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss their application.
Dated the 28th 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 28/7/2020
Racimo Melanie Narciso
(1st Applicant)
Domingo Darryl Racimo
(2nd Applicant)
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 28/7/2020
Torture Claims Appeal Board/ Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 10352/18/2/236/F570;
USM 10353/18/2/237/F571
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 3188-3189/17 (formerly RBCZ 2000766-2000767/14)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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