Case Detail

HCAL 788/2019

[2021] HKCFI 3746

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 788 OF 2019

_____________

RE:

MECATE FARIDA REONDRES

Applicant

_____________

Before: Deputy High Court Judge K.W. Lung in Chambers

Date of Decision: 23 December 2021

_____________

D E C I S I O N

_____________

The application

1. The applicant is an illegal immigrant 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”) and the Board dismissed her appeal (the “Board’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 5 November 2021 (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. The applicant filed a summons on 9 December 2021 applying for extension of time to appeal against the Court’s decision.

5. In her affidavit in support of her application, she said that the Court’s decision was sent to her old address and she had just received it the night before.

Discussion

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

7. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (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.

8. 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].”

9. The delay is not substantial, but her reasons for the delay is unconvincing. However, I have to consider the merit of her intended appeal.

10. The applicant claimed that, if refouled, she would be harmed or killed by the loan shark, Mr. Rushed Nolacio (“RN”) because she was unable to repay her debt. The Director found that there was no ground for believing that she would be harmed or killed by the loan shark if she returned to Philippines. She appealed to the Board.

11. On the basis of lack of credibility, the Board concluded that she failed in all applicable grounds and thus her appeal against the Director’s Decision was not substantiated.

12. The applicant has not raised any viable ground to show that she has any realistic prospect of success in her intended appeal. Nor has she set out any reasons to show that the Court’s decision was in error. There is no realistic prospect in her intended appeal.

13. 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 was unrepresented

HCAL 788/2019

[2021] HKCFI 3275

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 788 of 2019

BETWEEN

	Mecate Farida Reondres	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative 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 14 March 2019 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.

The applicant

4. The applicant is a citizen of Philippines. She had been working as a domestic helper in Hong Kong since 2003 and her last employment contract expired on 1 February 2009. However, the employment contract was terminated prematurely on 16 January 2009. She overstayed and surrendered herself to the Immigration Department on 13 September 2016. She was sentenced to prison for four months for breaching the condition of stay. Upon her release, she lodged a non-refoulement claim on 20 March 2017.

5. The applicant claimed that, if refouled, she would be harmed or killed by the loan shark, Mr. Rushed Nolacio (“RN”). The applicant alleged that she borrowed around 150,000 pesos from RN, a powerful man with many followers, for her brother’s brain surgery after a traffic accident in around August 2005. She was solely responsible for the loan and continued to repay the loan by installments while she was working in Hong Kong. However, in 2009, when her contract was terminated, she defaulted the repayments. She learnt that RN threatened her father that she would be killed if she did not repay. Out of fear, she stayed in Hong Kong. Details of her story are set out in paragraph 7 of the Director’s Decision described below and paragraph 19 of the Board’s Decision.

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 15 March 2018 (“the Director’s Decision”), the Director refused her claim for the reason that it was not substantiated. The Director found that there was no ground for believing that she would be harmed or killed by the loan shark if she returned to Philippines [14]-[16]; that state protection would be available to her [17]-[22] and that internal relocation was an option open to her [24].

The Board’s Decision

8. The applicant appealed to the Board against the Director’s Decision. On 30 November 2018, she appeared before the Board to give evidence in respect of her claim with an assistance of an interpreter. After hearing the applicant and considering the documents before it, the Board dismissed the applicant’s appeal.

9. The Board was guided by relevant legal principles in assessing the applicant’s credibility [21]-[22]. It found that there was no independent or probative evidence in support of the applicant’s alleged costs of her brother’s treatment [26]; that the applicant demonstrated little or no knowledge about the terms of the loan [32]-[39]; that her family did not encounter any problems with RN despite her default in payment [40]-[43]; and that her evidence was inconsistent or improbable in several material aspects of her claim [44]-[46]. Evaluating the applicant’s evidence in the non-refoulement claim form against her oral evidence, the Board refused to accept that she would face a real chance of harm of any type upon refoulement [51]-[52]. On the basis of lack of credibility, the Board concluded that she failed in all applicable grounds and thus her appeal against the Director’s Decision was not substantiated.

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

10. The applicant has filed Form 86 dated 21 March 2019 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 Decisions 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 applicant has not raised any valid challenge against the Board’s Decision.

16. 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.

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

CONCLUSION

18. 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 5^th day of November 2021

	(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

Notesfor 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 5 November 2021 Mecate Farida Reondres 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 5 November 2021 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 10935/18/3/387/F663 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 352/18 (Formerly RBCZ 10855/17) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

MECATE FARIDA REONDRES v. TORTURE CLAIMS APPEAL BOARD / NON REFOULEMENT CLAIMS PETITON OFFICE [Decision on Leave Application]

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Files (2)

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