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HCAL 846/2021
[2021] HKCFI 2606
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 846 of 2021
BETWEEN
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Loria Flordeliza Tayaban |
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 17 May 2021 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).
2. 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 Torture Claims Appeal Board/Non-refoulement Claims Petition Office and the interested party is the Director of Immigration (the “Director”).
3. The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”). Her application is therefore dealt with on the papers. According to the record, she is being detained in the Castle Peak Bay Immigration Centre.
The applicant
4. The applicant is a citizen of the Philippines. She came to Hong Kong on 28 January 2013 as a domestic helper. She was referred to the Immigration Department for investigation of an offence of breach of condition of stay. She then disappeared. She was arrested by police on 4 December 2020. She submitted her written representation on 7 December 2020 for non-refoulement claim with the Immigration Department.
5. The applicant claimed that, if refouled, she would be harmed by her creditors from whom she had borrowed 300,000 Philippine pesos and she was unable to repay her loan because she was dismissed by her employer in Hong Kong. The creditors had threatened to kill her. They had sent threatening letters to her employer’s place in Hong Kong. She decided not to return to the Philippines after her employment in Hong Kong. Details of her story are set out in paragraph 6 of the Director’s Decision described below.
The Director’s Decision
6. The Director considered her application in relation to the following risks:
a. risk of torture under Part VII C 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. 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”).
7. By Notice of Decision dated 5 February 2021 (“the Director’s Decision”), the Director refused her claim for the reason that it was not substantiated. The Director found that the level of risk of her being harmed by the creditors if she returned to the Philippines was assessed to be low [11]; that state protection would be available to her [15] and that internal relocation was an option open to her [20].
The Board’s Decision
8. The applicant appealed to the Board against the Director’s Decision. She appeared before the adjudicator of the Board on 22 April 2021.
9. The Board, having considered her evidence, rejected her appeal and affirmed the Director’s Decision. The Board found that her evidence was not believable. There were inconsistencies in the claimant’s documents and what she said before the Board. She did not remember the creditors’ names and was unable to say how much she had borrowed in Hong Kong currency and could not tell how much she had to pay for interest. The Board found that there was no evidence to be relied upon to assess the risk that her life would be endangered upon return to the Philippines. See paragraphs 8-16. However, the Board went further to consider that even if its decision on the facts were wrong, the applicant had state protection and internal relocation was an option open to her. [20 & 45]
Application for leave to apply for judicial review of the Board’s Decision
10. The applicant has filed Form 86 on 8 June 2021 to apply for leave to apply for judicial review of the Board’s Decision.
11. In her affidavit in support of her application, the applicant had not stated any specific ground in support of her application.
DISCUSSION
12. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its 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 CA. §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).
13. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.
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 does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.
16. The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.
CONCLUSION
17. I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.
Dated the 10th day of September 2021
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(K.H. LI) |
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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 10/09/2021
Loria Flordeliza Tayaban
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 10/09/2021
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 17642/21/2/58/F1237
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 1004/20 (Formerly RBCZ 10958/20)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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