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HCAL 29/2019
[2020] HKCFI 1009
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 29 of 2019
BETWEEN
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Flores Marites Evangelista |
Applicant |
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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. This is the applicant’s application for leave to apply for judicial review of the Decision dated 19 December 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).
The applicant
2. The applicant is a Filipino national. On 10 November 2012, she arrived at Hong Kong for employment and was granted limited stay until 24 October 2013. On 20 December 2012, she was arrested by the Immigration officer for making a false representation to an Immigration Officer; making a false representation to an Immigration Assistant and furnishing false particulars to registration officer. She was convicted and sentenced to 5 months’ imprisonment. On 29 January 2014, she raised a torture claim.
3. She claimed that if refouled, she would be harmed or killed by the gangsters.
4. The incidents took place as set out below.
a. Since 1997, she had been working in Hong Kong as a domestic helper.
b. Her eldest brother had borrowed 100,000 pesos from the gangsters for gambling. He was nowhere to be found.
c. The gangsters went to her house one evening in 2009. They threatened to kill her mother and her if the money was not paid. They got her text address from her mother.
d. In April 2009, she received text threats from the gangsters. Since April 2010, she had not returned to the Philippines.
e. She had contacts with her sister and mother. They told her not to return to the Philippines lest the gangsters might harm her. In February 2015, her sister told her that the problem still remained. She did not report this matter to police in the Philippines.
The Director’s Decisions
5. The Director considered her application in relation to the following risks:
a. torture risk under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”);
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. 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”).
6. By Notice of Decision dated 17 February 2015 and Notice of Further Decision dated 15 May 2017, collectively called (“the Director’s Decisions”), the Director refused her claim for the reason that her claim was not substantiated. The Director took the view that there were no substantial grounds to believe that she would be harmed or killed by the gangsters upon her return to the Philippines [31]; state protection [41] and relocation [42] were available to her. Also, she failed to establish a case for BOR 2 risk. See paragraph 6 of the Director’s Further Decision.
The Board’s Decision
7. The applicant appealed to the Board against the Director’s Decisions. She attended a hearing before the Adjudicator on 9 October 2018.
8. By the Board’s Decision, the Board rejected her appeal and confirmed the Director’s Decisions.
9. The Board considered the applicant’s evidence and was of the view that the applicant’s evidence in relation to the facts in support of her claim was not acceptable. For the reasons it gave, it rejected her evidence on the facts of her case both individually and cumulatively. See paragraphs 77 – 100 of the Board’s Decision.
Application for leave to apply for judicial review
10. The applicant filed Form 86 dated 4 January 2019 for leave to apply for judicial review of the Board’s Decision.
11. In her affirmation in support of this application, she relied upon the grounds below.
1. The hearing bundle was given to her shortly before the appeal hearing and she did not have sufficient time to prepare for the translation herself.
2. She was confused at the hearing.
3. The Board relied upon the source of news which was not officially recognized or hearsay; cases which were outdated leading to groundless speculation of her case.
4. There was no screening by the Immigration Department for BOR 2 risk.
5. The Board’s decision was wrong.
DISCUSSION
12. The applicant appeared before me and she confirmed that she was free to express herself before the immigration officer and the Board. She can read English herself and she understands the Decisions.
13. I also put the Board’s findings to her and asked her if she had any comments on them. She said that she did not have any comments.
14. 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.”
15. The Court of Appeal in Re: Moshsin Ali, [2018] HKCA 549 (CACV 54/2018)at §42held that the Board’s decision is final, subject to judicial review by the court. However, there is no evidence to show that the Board erred in its finding of the facts or in the application of the laws to the case.
16. Grounds (1) and (2) are inconsistent with what she said before me. Grounds (3) and (5) are her opinions without any evidence in support of them. Ground (4) will not support her application because the Director had already given her an interview with the immigration officer for the other risks other than BOR 2 risk under section 37 ZB of the Ordinance. The applicant is unable to identify why an interview on BOR 2 risk is necessary, given the fact that she had already given the facts of her case to the immigration officer in the previous interview. The Director did not find it necessary to clarify her evidence for BOR 2 risk. See Afsar Khan v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office and The Director of Immigration [2019] HKCA 751, 10 July 2019.
17. The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.
CONCLUSION
18. Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant her leave to apply for the intended judicial review. Accordingly, I dismiss her application.
Dated the 3rd day of June 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 3/6/2020
Flores Marites Evangelista
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 3/6/2020
Torture Claims Appeal Board/ Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 1089/15/3/9/F50
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 727/14 and RBCZ 9001552/17 (formerly RBCZ/1310/14)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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