FRIAS MYRIS JAY SARBUES v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE [Decision on Leave Application]

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.

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

Observations for the Applicant:

Introduction

1.  By Form 86 dated 6 July 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”) dated 26 May 2022 (“Board’s Decision”), which affirmed the Decision of the Director of Immigration (“Director”) dated 30 August 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 incorrectly named both the Board and the Immigration Department as putative interested parties.  I therefore amend the Form 86 on my own motion 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 that she would be killed by her ex-partner if she were returned to the Philippines.  Her case is that her ex-partner, with whom she started a relationship in 2011 and have two children, was violent towards her and the children.   The Applicant travelled to Hong Kong in 2019 and was able to remit money to her ex-partner and his family in repayment of a loan from them, but she then lost her job and was unable to continue repayment.  When she informed her ex-partner, he threatened to kill her over the telephone, and she later heard he had repeated those threats to family members in the Philippines.  Her children then left his home and moved in with her father and stepmother.

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 proceeded on the basis that the Applicant’s factual assertions were true: §§28, 31.  However, it took the view that reasonable state protection would be available to her as a victim of domestic violence: §§34-41.  Further and in any event, it considered there was no evidence that her ex-partner had any influence or authority outside his own area, and she would have a safe internal relocation alternative (such as Manila) having regard to her background and work experience: §§42-46.

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