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HCAL1297/2018
[2019] HKCFI 953
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1297 of 2018
BETWEEN
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Medina Amalia Macha |
Applicant |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative Respondent |
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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 (Order by Deputy High Court Judge K.W. Lung):
THE APPLICATION
1. This is the applicant’s application for leave for judicial review against the decision of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) with the Director of Immigration (“the Director”) as the interested party.
The applicant
2. The applicant is a Filipino national. She first came to Hong Kong as a domestic helper in 1999 and had then been working in Hong Kong till 2013. She was involved in a case of signing a bogus employment contract and was convicted of the offence of making a false representation to an Immigration officer. She was sentenced to 2 months’ imprisonment in March 2016. In April 2016, she lodged her non-refoulement claim.
3. She claimed that her late husband had borrowed a large sum of money from a moneylender in the Philippines, which she would not be able to repay. She and her husband had been assaulted by the moneylender and after that her husband died. The moneylender and his gang would harm or kill her if she were to be returned to the Philippines.
4. In her statements given to the Director and the Board, she said in April 2009, she intended to go to Cyprus to work. She needed HK$56,000 for the agency fee. She managed to pay $25,000. Her husband borrowed the rest from the money-lender. However, he was unable to repay the loan. The money-lenders came to her house and vandalized it. They assaulted her and her husband. One of them put a gun at her head. She escaped. Her husband was admitted to hospital. Later, she learned that her husband died because of cardiac arrest. She came to Hong Kong and paid part of the agency fee to the agent. However, she later learned that it was a scam. She stayed in Hong Kong, but was involved in a case of signing a bogus employment contract leading to her conviction and imprisonment.
The Director’s Decision
5. 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. 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 under RC”).
6. By Notice of Decision dated 20 March 2017 (“the Director’s Decision”), the Director refused her application for the reason that her non-refoulement claim was not substantiated.
The Board
7. The applicant appealed to the Board. She attended a hearing before the Adjudicator on 8 March 2018. The Adjudicator decided to re-hear the case de novo.
8. By Decision dated 7 June 2018 (“the Board’s Decision”), the Board refused her appeal and confirmed the Director’s Decision.
9. Having considered her evidence, the Board found that she had exaggerated that she would be harmed or killed by the moneylender; that she would be subjected to physical or mental suffering of the requisite level of severity if refouled; that the state of the Philippines was involved in the incidents and that state protection would not be available to her. See §§62-66 of the Board’s Decision.
Application for leave for judicial review
10. By Form 86 dated 6 July 2018, under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave for judicial review of the Board’s Decision.
11. In her affidavit in support of her application dated 6 July 2018, she set out the reasons in support of her application below:
(1) the Hearing Bundle was only given to her shortly before the appeal hearing and she did not have sufficient time to prepare for it;
(2) the Hearing Bundle was in English without translation and she was unable to find an interpreter;
(3) she was therefore confused at the appeal hearing; and
(4) the Board had relied upon the Country of Origin Information which was not officially recognized or simply hearsay.
DISCUSSION
The Board’s Decision
12. As requested, the applicant appeared before me. She confirmed that she was able to understand English and the contents of the Hearing Bundle. She had no problem at the appeal hearing. The Adjudicator was very kind to her. She had no complaint against the Immigration officer or the Adjudicator. She was satisfied that she had had fair screening at the Immigration Department and fair hearing at the Board.
13. Grounds (1) to (3) fail.
14. As to the allegation that the Board had relied on the source of news which was not officially recognized or it is simply hearsay, under section 18 of Schedule 1A of the Immigration Ordinance, the Board may consider the same evidence that was before the Immigration officer[1]. The Director is entitled to consider any relevant materials for the investigation under section 37ZB of the Immigration Ordinance (“the Ordinance”)[2]. The Director had considered the relevant reports in relation to the Country of Origin Information. They are recognized information for assessment of the risks as raised by the applicant in the legal proceedings. The Board was entitled to rely upon the same information. The Court of Final Appeal had also relied upon The Handbook (United Nations High Commission for Refugees) in its Judgment in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187[3]. The applicant has not set out any reason why she considers that the information is unreliable. Ground (4) fails too.
15. I find that the applicant has no reasonable chance of success in her judicial review.
CONCLUSION
16. Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant her leave for judicial review. Accordingly, I dismiss her application.
Dated the 16th day of April 2019
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(Henry Ng)
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
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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 16/4/2019
Medina Amalia Macha
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 16/4/2019
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 6706/17/3/361/F362
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 3070/16 (formerly RBCZ 11539/16)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] In an appeal under section 37ZR, the Appeal Board has the power to review the merits of the case, and accordingly it may consider—
(a) the same evidence that was before an immigration officer;
[2] After a completed torture claim form is returned by a claimant, an immigration officer—
(a) may require the claimant to provide the immigration officer with any information or documentary evidence related to the claimant’s torture claim that the immigration officer specifies;
[3] See §21
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