SANTOS ARLEN VOLUNTAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

1.   Form 86 be amended, naming only the Director of Immigration as the Putative Interested Party and the Decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office dated 31 May 2022 as the decision in respect of which relief is sought.

2.   The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By Form 86 dated 4 August 2022 (“Form 86”), the Applicant seeks leave to apply for judicial review (“Leave Application”) against the Decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“Board”) which, as stated below, was dated 31 May 2022 (“Board’s Decision”).  The Board affirmed the Decision of the Director of Immigration (“Director”) dated 15 July 2021.

2.  The Applicant did not request an oral hearing.  I determined her Leave Application on the papers accordingly: O.53, r.5(3) of the Rules of the High Court (Cap 4A).

3.  The Form 86 misstated the date of the Board’s Decision and failed to name the Director as the putative interested party.  I therefore amend the Form 86 on my own motion to state the Board’s Decision dated 31 May 2022 as the decision in respect of which relief is sought and to name the Director as the putative interested party.

Background

4.  The Applicant is a citizen of the Philippines.  Her background and the basis of her application for non-refoulement were set out in detail in the Board’s Decision at this hyperlink.[1]  I will not repeat them here.  Unless otherwise specified, I adopt the abbreviations in the Board’s Decision.

5.  In short, the Applicant claimed to fear the associates of a deceased drug dealer called Val.  The Applicant said her brother-in-law sold drugs given to him by Val, and told Val that she had the money from the sales so that he would not have to repay Val.  She claimed that Val had threatened that if she did not return the money, something would happen to her.  She said that while Val was killed in 2016, her brother-in-law’s daughter told her that Val’s group was still looking for her. Apart from that she had never heard from Val or anyone else about the money after she left the Philippines.

Discussion

6.  Leave application is meant to be a filtering process and the court is not expected to give elaborate reasons for its decision: Re Zunariyah [2018] HKCA 14 at §23. I therefore set out below brief reasons for my decision, which I have reached upon considering all the materials before me.

7.  The court’s role in judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  While the court adopts in non-refoulement cases an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  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: Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(1). There must be a reasonably arguable case, namely one which enjoys a realistic prospect of success, before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 at §§14-17.

8.  In a proper Form 86, an applicant is required to state the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (HCAL 21/2015, 22 December 2016) at §142.  He or she is also under a duty to make full and frank disclosure of material facts: Kan Hung Cheung v The Director of Immigration [2008] HKC 323 at §§14-17.

9.  In this Leave Application, the Applicant has not stated any ground of judicial review.  She has not identified any error of law or procedural unfairness or irrationality in the Board’s Decision to demonstrate a reasonably arguable case.

10.  In any event, I have reviewed the Board’s Decision and I do not detect any error of law, procedural unfairness or irrationality.  The Board assessed the evidence in detail and gave adequate reasons for its decision.  In particular, it was found that the Applicant’s evidence at the hearing before the Board was extremely vague, and she knew nothing about the identity of the people she claimed would harm her other than that they were drug dealers: §27. The Board considered that even if the Applicant’s claims regarding the threat by Val before she left the Philippines was accepted, she had no credible basis to fear that she would be seriously harmed or killed by Val’s associates should she return: §28.

11.  In the premises, I conclude that the Applicant’s intended challenge against the Board’s Decision is not reasonably arguable. 

Conclusion

12.  I make an order that the Form 86 be amended in the manner set out above and that the Leave Application be dismissed.

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

Form CALL-1