TAYONG MARY ANN RABACA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

1.   Form 86 be amended, naming only the Torture Claims Appeal Board / Non refoulement Claims Petition Office as the Putative Respondent and the Director of Immigration as the Putative Interested Party.

2.   The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By Form 86 dated 13 June 2022 (“Form 86”), the Applicant seeks leave to apply for judicial review (“Leave Application”) against the Decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“Board”) dated 2 June 2022 (“Board’s Decision”), which affirmed the Decision of the Director of Immigration (“Director”) dated 13 May 2021.

2.  The Applicant did not request an oral hearing.  I determined her Leave Application on the papers accordingly: O.53, r.5(3) of the Rules of the High Court (Cap 4A).

3.  The Form 86 incorrectly named both the Board and the Immigration Department as putative respondents and putative interested parties.  I therefore amend the Form 86 on my own motion to name only the Board as the putative respondent and the Director as the putative interested party.

Background

4.  The Applicant is a national of the Philippines. Her background and the basis of her application for non-refoulement were set out in detail in the Board’s Decision at this hyperlink.[1]  I will not repeat them here.  Unless otherwise specified, I adopt the abbreviations in the Board’s Decision.

5.  In short, the Applicant claimed to fear that she would be harmed or killed by her cousin Vilma if she were returned to the Philippines.   Her case is that in 2010 or 2011, she “pawned” ½ hectare of farmland to Vilma for PHP 120,000, which Vilma used to cultivate rice for sale until the Applicant repaid the money.  In 2017, the Applicant’s landlord repossessed the farmland.  This angered Vilma who wanted her money back, but the Applicant was unable to make repayment.

Discussion

6.  Leave application is meant to be a filtering process and the court is not expected to give elaborate reasons for its decision: Re Zunariyah [2018] HKCA 14 at §23. I therefore set out below brief reasons for my decision, which I have reached upon considering all the materials before me.

7.  The court’s role in judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  While the court adopts in non-refoulement cases an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, it 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: Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(1). There must be a reasonably arguable case, namely one which enjoys a realistic prospect of success, before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 at §§14-17.

8.  In a proper Form 86, an applicant is required to state the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (HCAL 21/2015, 22 December 2016) at §142.  He or she is also under a duty to make full and frank disclosure of material facts: Kan Hung Cheung v The Director of Immigration [2008] HKC 323 at §§14-17.

9.  In this Leave Application, the Applicant has not stated any ground of judicial review.  She has not identified any error of law or procedural unfairness or irrationality in the Board’s Decision to demonstrate a reasonably arguable case.

10.  In any event, I have reviewed the Board’s Decision and I do not detect any error of law, procedural unfairness or irrationality.  The Board assessed the evidence in detail and gave adequate reasons for its decision.  In particular:

(1)   The Board found on the evidence that the Applicant failed to make out the necessary risk of harm. The Board noted (among others) the Applicant’s explanation at the hearing before the Board that Vilma never specifically said she would kill the Applicant. Vilma, a neighbour of the Applicant’s mother, never threatened or harmed the Applicant’s husband, or any of the Applicant’s family members living with the Applicant’s mother: §§56, 66(e)-(f).

(2)   The Board noted that the Applicant and her mother did not seek assistance from the police regarding Vilma’s threats.  On the COI submitted by the Director, the Board took the view that reasonable state protection would be available to the Applicant if she returns to the Philippines: §§66(j)-(k).

(3)   In any event, the Board considered that even if the Applicant had been able to show that she faced a real or genuine risk of harm, such risk was confined to the local area where she lived, and it would not be unreasonable or unduly harsh for her to relocate to elsewhere in the Philippines (such as Manila or Cebu City), in the light of her personal circumstances, education and work experience: §§82-86.

11.  In the premises, I conclude that the Applicant’s intended challenge against the Board’s Decision is not reasonably arguable. 

Conclusion

12.  I make an order that the Form 86 be amended in the manner set out above and that the Leave Application be dismissed.

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