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HCAL 762/2023
[2025] HKCFI 373
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 762 of 2023
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BETWEEN
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Vivien Bregania Sorbito |
Applicant |
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and |
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Torture Claims Appeal Board / |
Putative |
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Non-Refoulement Claims Petition Office |
Respondent |
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and |
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Director of Immigration |
Putative |
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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 Levy:
1. The Form 86 is amended on the court’s own motion;
2. The applicant’s application to withdraw the Leave Application be refused; and
3. The Leave Application be dismissed.
Introduction
1. By prescribed Form 86 filed on 18 May 2023, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office ("Board") dated 19 April 2023 (“Board's Decision”) dismissing the applicant's appeal against the decision of the Director of Immigration ("Director") dated 19 May 2022 (" Director's Decision") rejecting the applicant’s non-refoulement claim.
2. In Form 86, the applicant named the Board as the interested party. As the Director should have been the proper proposed interested party, the Form 86 will be amended accordingly on the court’s own motion.
Background
3. The background as taken from the Board’s Decision, exhibited to the applicant’s supporting affirmation, can be briefly stated as follows.
4. The applicant is a national of Philippines. She first came to Hong Kong in 2017 to work as a foreign domestic helper. Her employment contract was last extended to 20 February 2022, but was prematurely terminated after she had stolen from her employer. On 11 March 2022, the applicant lodged a non-refoulement claim, covering all applicable grounds of torture risks[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4] under the USM.[5] The claim was based on a fear of being harmed or killed by her brother or her paternal uncle for having brought shame to the family for her conviction on 19 April 2022 for theft from her employer. She was sentenced to 14 months’ imprisonment.
5. After the Director had rejected her claim, the applicant appealed to the Board.
6. On 16 January 2023, the applicant attended a hearing before the Board. The Board accepted that the applicant’s stealing from her employer arose from her incurring debt in the Philippines before she came to Hong Kong, and the later she took a loan with a finance company in Hong Kong. However, the Board rejected the applicant’s assertions that her brother and the uncle would pose any risk of harm to her should she return. The Board found that her assertions incredible. The Board further found that state protection and internal relocation were available to her. The Board found that the applicant had failed to establish her case.
Legal principles applicable to judicial review
7. As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.
Discussion and Conclusion
8. The applicant did not provide any grounds in support of the intended challenge in either the Form 86 or her supporting affirmation. The applicant has failed to identify any arguable error of law by Board, any relevant matter that the Board had failed to consider, or any other reason why the dismissal of the appeal was wrong.
9. Having rigorously examined the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to the four grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness. I am satisfied that there were no errors of law or procedural unfairness in the Board’s Decision. In the absence of any specific grounds in support of the Leave Application, I find that it was perfectly open to the Board to come to its conclusion that the applicant failed to discharge her burden of proving the asserted fears and risks.
10. For these reasons, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.
Withdrawal of Leave Application
11. On 25 October 2024, the Immigration Department faxed to court a letter dated 22 October 2024 from the applicant. In the letter, the applicant applies to withdraw the Leave Application, stating that she wants to go back to her home country as soon as possible.
12. On 22 November 2024, this court sent a letter to the applicant, directing her to file an affirmation or a statement within 14 days to confirm that her withdrawal application was made out of her own free will. The applicant was further informed that if the court received nothing further from the applicant within that period, the court would refuse her withdrawal application and might dismiss the Leave Application for want of prosecution. As the applicant has not filed any document as directed within the stipulated period, I order the dismissal of the Leave Application is dismissed for want of prosecution.
Orders
13. The Form 86 is amended on the court’s own motion.
14. The applicant’s application to withdraw the Leave Application be refused.
15. The Leave Application be dismissed.
Dated the 17th day of January 2025.
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(Allen LEE)
for Registrar, High Court
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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 17/1/2025
Vivien Bregania Sorbito
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 17/1/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 20383
Director of Immigration
Putative Interested Party’s ref. no.:
RBCL/31050/22 (CZ)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] This refers to the risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap.115.
[2] This refers to the risk of violation of the right to life under Art. 2 of s.8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”).
[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Art 3 of HKBOR.
[4] This refers to the risk of persecution with reference to the non-refoulement principle under Art. 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
[5] This refers to the Hong Kong Government’s Unified Screening Mechanism (“USM”) implemented since 3 March 2014 to process claims for non-refoulement protection. For a detailed description of the USM, see the judgment of Zervos J in HKSAR v Vu Thang Duong & Anor [2015] 3 HKC 293.
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