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HCAL 1756/2019
[2024] HKCFI 1973
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1756 of 2019
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Lardizabal Prim Rose Tamayo |
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 May 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”); Notice of Decision issued by the Immigration Department dated 30 July 2018 (“the Director’s Decision”), Supplementary Claim Form issued by the Immigration Department dated 25 June 2018; and Record of Screening Interview issued by the Immigration Department dated 17 July 2018.
2. Under the law, only the Board’s Decision is amenable to judicial review. The Director’s Decision is superseded by the Board’s Decision[1] and the other documents contain no administrative decision. They are dismissed in limine.
3. The applicant requested an oral hearing. However, she was absent at the hearing on 12 June 2024 without prior notice to the court. I shall deal with her application on paper.
4. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.
The applicant
5. The applicant, aged 49, is a Filipino. She arrived in Hong Kong as a visitor on 4 October 2009 and overstayed since 19 October 2009. On 22 October 2009, she was arrested by the police for breach of condition of stay and was subsequently sentenced to imprisonment for a month suspended for 12 months. The applicant made a torture claim on 5 November 2009, which was rejected on 19 July 2013. Her subsequent appeal was also dismissed on 2 September 2013. The applicant lodged a further non-refoulement claim on 11 July 2013. The claim was made on the basis that, if refouled, she would be harmed or even killed by the Kalinga Tribesmen (“the Tribesmen”) because she had a land dispute with them.
6. According to the applicant, her parents purchased a piece of land (“the Land”) with a house (“the House”) in 1980s, which was adjacent to the land belonging to the Tribesmen. Since 1980s, when the applicant’s parents started renovating the House, the Tribesmen had already shown their intention to occupy the Land by threatening her parents with guns. In early 1990s, the applicant was shown some court documents by her parents indicating that one of the Tribesmen had filed a court case against her family regarding the Land and the House (“land dispute case).
7. One day in mid 1990s, about ten Tribesmen walked towards the House and threw stones at the gate. A few weeks later, while the applicant was at the market, she was threatened by one of the Tribesmen armed with gun to be extra careful. Around a month later, the applicant heard gunshot when she was at home with her family. She then saw from the window that three Tribesmen were firing into the air and to the direction of the House. A few days later, the applicant’s sister and her husband made a report to the police, but the Tribesmen continued disturbing the applicant and her family.
8. In around August 2006, the applicant’s father attended court in relation to the land dispute case. When he was about to board his truck after submission of documents at the Barangay Hall, two masked persons in motorbikes emerged and fired shots at him. Her father was killed on the spot as a result. The applicant’s brother-in-law reported the incident to the police. A few months later, two Tribesmen were arrested by the police, but they were released on bail subsequently. Although the applicant and her family did not receive any threats or harm from the Tribesmen after her father’s death, she still believed that she was in danger and started planning a journey to Hong Kong in April 2009. Before leaving the Philippines, the applicant accommodated her children to her mother-in-law’s home, where she did not encounter any of the Tribesmen. Eventually, she arrived in Hong Kong on 4 October 2009.
9. The applicant maintained contact with her family while in Hong Kong. She was informed by her sister in April 2013 that the Tribesmen had sued her parents for the ownership of the Land and the case was ongoing. In the meantime, there were Tribesmen staying in the vicinity of the House. On 16 December 2017, the applicant’s sister told her that the Tribesmen were still seeking for her whereabouts from time to time.
10. The applicant considered internal relocation not viable because she had nowhere to stay apart from the House and was worried that the Tribesmen would acquire their properties if they moved away from the House. The applicant was also of the view that she could not seek protection from the police because they did not help those people who were in similar situation like hers in the past.
11. Details of the applicant’s story can be found in paragraph 8 of the Director’s Decision dated 30 July 2018.
The Director’s Decision
12. The Director considered the applicant’s claim in relation to the following risks:
a. risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“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”).
10. By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that the low level of past ill-treatment from the Tribesmen indicated a small future risk of harm upon her return to the Philippines. The Director also considered that the Tribesmen had no real intention to seriously harm or kill the applicant due to the land dispute case because her sister who was handling the relevant lawsuit remain unharmed. In any event, there was also no evidence showing that the death of the applicant’s father was related to the Tribesmen and that her behaviour of staying in the House until 2009 was also inconsistent with that of someone genuinely in fear [14] - [15].
11. Furthermore, (i) state protection would be available to her upon her return [16] - [20]; (ii) internal relocation would be viable [21] - [22] and (iii) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [23] - [28] or Persecution risk [29] - [33].
The Board’s Decision
12. The applicant appealed the Director’s Decision to the Board. On 17 May 2019, the Board conducted an oral hearing.
13. The Board found that the applicant had nothing to do with the Land as it was the property of her parents. It also noted that nothing eventful happened to the applicant throughout the 26 years she lived in the House and that all the incidents she encountered were at most threats from the Tribesmen. Furthermore, the Board considered that the applicant’s behaviour to apply for protection only after spending four years in Hong Kong was inconsistent with that of someone genuinely in fear [17] - [18].
14. Based on the findings above, the Board concluded that the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk or Persecution risk [6] - [13], [24] - [33]. In any event, state protection and internal relocation were also available according to the country of origin information [21] - [23], [34] - [38].
15. The Board therefore dismissed the applicant’s appeal and confirmed the Director’s Decision.
Application for leave to apply for judicial review of the Board’s Decision
16. The applicant has filed Form 86 on 25 June 2019 to apply for leave to apply for judicial review of the Board’s Decision.
17. In the affirmation in support of her application, the applicant has raised the grounds below.
(1) The Board’s Decision is unfair because the procedure was unfair.
(2) The Board failed to make full and proper inquiries into the relevant country of origin information (“COI”), cherry-picking those against her case
(3) She had no legal representation for her appeal.
(4) She had no language assistance.
(5) The hearing bundle was given to her shortly before the hearing.
(6) The Board did not consider her grounds of appeal.
(7) The Board’s Decision was not translated to her.
(8) The Board failed to give weight to the relevant information, but relied on website materials, ignoring the actual report.
DISCUSSION
18. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).
19. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.
20. 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.”
21. According to the Director’s Decision [9] and [10], the applicant came to Hong Kong on 4 October 2009. She made her torture claim on 5 November 2009, about one month after her arrival. The Board’s comment that she made her torture claim only after 4 years [18] is not correct. In my view, this mistake does not affect a just assessment of the applicant’s claim by the Board. It is only a factor that the Board had taken into account for assessing her credibility.
22. The Board had considered the facts the applicant alleged in paragraph 17. It did not challenge her alleged facts, save that she had the intention of seeking protection in Hong Kong. On the admitted facts, the Board found that her conditions did not comply with the requirements of BOR 2 risk, BOR 3 risk or Persecution risk. The Board further found that state protection would be available to her and internal relocation was viable.
23. As to her grounds in support of her application under paragraph 17, grounds 1, 2, 6 and 8 are her bare assertions or personal comments without any evidence in support. They are not valid grounds[2]. She did not bring shortage of time to the Board and asked for an adjournment. Ground 5 fails. She is not entitled to free legal representation at all stages of the proceeding[3]. She is also not entitled to interpretation service all the time[4]. Grounds 3, 4 and 7 fail too.
24. The applicant therefore fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.
CONCLUSION
25. I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.
Dated the 20th day of August 2024
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(M.O. WONG)(Ms)
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 20/8/2024
Lardizabal Prim Rose Tamayo
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 20/8/2024
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 12873/18/8/143/F816
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 2222/18 (formerly RBCZ 2001278/14)[T5 S135]
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] Re: Moshsin Ali [2018] HKCA 549, Hon Lam VP and McWalters JA, 24 August 2018
“45. … 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. … 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.”
[2] The Court of Appeal in Salim Ahmed alias MD Salim [2020] HKCA 244 held:
“20. … … general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case: Re Mizan Sikder [2019] HKCA 20 and Ibrahim v Simon Russell [2019] HKCA 1327.” See also Re Haider Khalil [2021] HKCA 223 [16].”
[3] The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178 held:
“22. This Court has repeatedly held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration. We do not find anything amiss arising from lack of legal representation in the process before the Board.”
[4] The Court of Appeal in Re Khan MD Omar [2019] HKCA 803, 19 July 2019 held:
“I8. … …Interpreter services were provided at hearings at every stage. Such services were also available at the time when the applicant was assisted by Duty Lawyer. We do not accept that the alleged lack of language assistance at other time would render the process unfair in the present case.”
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