Case Detail

HCAL 328/2019

[2023] HKCFI 1220

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 328 OF 2019

_____________

BETWEEN

	Come Erlyn Ebena	Applicant
	and
	Torture Claims Appeal Board / Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

_____________

Before:

Deputy High Court Judge K.W. Lung in Chambers

Date of Decision:

22 May 2023

_____________

D E C I S I O N

_____________

The application

1. The applicant is an illegal immigrant by staying in Hong Kong without permission and she lodged a non-refoulement claim with the Director of Immigration (“the Director”). The Director rejected her application and she appealed to the Torture Claims Appeal Board (“the Board”). Having considered her evidence, the Board, by its Decision (“the Board’s Decision”), rejected her appeal and affirmed the Director’s Decision.

2. Pursuant to Order 53, rule 3(2) of the Rules of the High Court (“RHC”), the applicant filed Form No. 86 to apply for leave to apply for judicial review of the Board’s Decision.

3. By Order dated 7 March 2023 (“the Court’s decision”), the Court dismissed her application for the reason that there was no realistic prospect of success in her intended application.

4. In her affidavit filed on 25 April 2023, the applicant said that she did not receive the Court’s decision. According to the record, the Court’s decision was sent to her last known address on 7 March 2023 and re-sent to her updated address on 28 March 2023, which was returned on 4 April 2023. An updated enquiry of the Immigration Department revealed that the applicant’s updated address is the same as her last known address, to which the Court’s decision was sent and returned. Pursuant to Order 65, rules 5 (2)(b) and 7(2) of the RHC, it is deemed to be served on the next following day, not being a specified day such as Saturday or a general holiday. The applicant is therefore deemed to have received the Court’s decision.

Discussion

5. Pursuant to Order 32, rule 11 and 11A of the RHC, having considered the applicant’s reason, I decide to determine this application on paper without an oral hearing.

6. The Court shall consider the factors as set out in AW v. Director of Immigration and William Lam [2016] 2 HKC 393 at para. 27(3) in considering if extension of time should be extended: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. The deadline for her appeal is 22 March 2023. The applicant is late for one month. I shall consider the merits of her case.

7. In Re Adumekwe Rowland Ejike[2019] HKCA 702, the Court of Appeal held:

“19. The prospect of success of the intended appeal is important: the court will not grant extension for a hopeless appeal to be pursued, see Re Rahman Wasif[2019] HKCA 299 at [13]; Re Kpamou Gbotoi Bernard[2019] HKCA 168; and Re Irshad Muhammad[2018] HKCA 864 at [16].”

8. The applicant’s claim was made on the basis that, if refouled, she would be harmed or killed by the loan shark because she was unable to repay the loan.

9. The Director of Immigration refused her application for the reason that her claim was not substantiated. She appealed to the Board.

10. Having considered the evidence, the Board found that the applicant’s evidence was not reliable and that state protection would be available to her and internal relocation was a viable option. The Board dismissed her appeal.

11. The applicant has not been able to raise any valid ground to challenge the Board’s Decision. There is not any realistic prospect of success in her intended appeal.

12. In the circumstances, I refuse to extend time for her appeal. Accordingly, I dismiss her application.

	(K.W. Lung)
	Deputy High Court Judge

The applicant appeared in person.

HCAL 328/2019

[2023] HKCFI 440

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 328 of 2019

BETWEEN
	Come Erlyn Ebena	Applicant
	and
	Torture Claims Appeal Board/	Putative
	Non-refoulement Claims Petition Office	Respondent
	and
	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;

consideration of documents only; or
consideration of documents and Applicant being absent in open court;

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 31 January 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2. The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with her application on paper.

3. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.

The applicant

4. The applicant is a national of the Philippines. She entered Hong Kong as a foreign domestic helper on 30 June 2012. However, her employment contact was terminated prematurely on 17 August 2012. She was required to leave within two weeks after the termination of her contact. Yet, she did not depart and had overstayed since 1 September 2012. On 9 July 2015, she surrendered to the Immigration Department. On 1 February 2016 and 2 March 2016, she lodged a non-refoulement claim on the basis that, if refouled, she would be harmed or killed by the loan shark.

5. In short, the applicant borrowed a loan from the loan shark to support her application for overseas employments in 2010. However, she did not repay the loan and had only remitted her salary to the loan shark once. The loan shark started to chase for repayments. She called the applicant’s cellphone in Hong Kong because the applicant’s son revealed the contact to the loan shark. The loan shark also threatened the applicant’s ex-boyfriend. In January 2017, the applicant was informed that her son was assaulted by the loan shark’s relatives. Facing the constant death threats, she decided to stay in Hong Kong for protection. Details of her claim are set out at paragraph 7 of the Notice of Decision dated 2 June 2017 by the Director (the “Director’s Decision”).

The Director’s Decision

6. The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);
b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“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 way of the Director’s Decision, the Director dismissed the applicant’s claim as her claimed fear of harm from the loan shark was groundless. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments towards the applicant and her family members indicated an unlikelihood of future risk of harm [12]; (ii) her problem with the loan shark was a private one without state involvement [13]; (iii) state protection would be available to her [14]-[16]; and (iv) internal relocation was a viable alternative [17]-[18].

The Board’s Decision

8. The applicant appealed the Director’s Decision to the Board. On 14 June 2018, the Board conducted an oral hearing for her appeal, during which she was assisted by an interpreter [48].

9. The Board noted that it was implausible for the loan shark to lend the applicant the said sum at such a high interest rate solely on the proof of the applicant’s employment contract. It noticed that, in light of the doubt, the applicant changed the story of how she borrowed the loan [52]. The Board considered it to be unreasonable why the applicant would not sell her house in Calapan City to settle the loan [54]. It also observed that the applicant gave contradictory accounts as to her whereabouts during her second vacation back home in May or June 2012 [56]. It considered the applicant’s evidence on the threats of the loan shark problematic [57]-[58]. It refused to accept that the loan shark would lend the applicant that sum of the loan in light of her low income [59]-[61]. It further rejected the applicant’s assertions of the lack of state protection and the unavailability of internal relocation [62]-[65] as both alternatives were available to the applicant to negate the claimed risk of harm [78]-[87].

10. For the above reasons, the Board rejected the applicant’s claim and dismissed her appeal.

Application for leave to apply for judicial review of the Board’s Decision

11. The applicant has filed Form 86 dated 4 February 2019 for leave to apply for judicial review of the Board’s Decision.

12. In her affidavit in support of her application, the applicant said she still has not paid back the loan and the creditor wants to kill her.

DISCUSSION

13. 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, §40 and Nupur Mst v Director of Immigration[2018] HKCA 524, §14 (1).

14. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

15. 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.”

16. The ground in paragraph 12 above is not valid to challenge the Board’s Decision.

17. 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.

18. The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.

CONCLUSION

19. I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

Dated the 7^th day of March 2023

(M.O. WONG)(Ms)
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:
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)).		Sent to the Applicant on 7/3/2023 Come Erlyn Ebena Applicant’s ref. no: Nil.		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 7/3/2023 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 7463/17/6/159/F389 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 924/17 (Formerly RBCZ/11109/16) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

COME ERLYN EBENA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Related cases with same parties

Files (2)

	consideration of documents only; or
	consideration of documents and Applicant being absent in open court;