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Merino Natividad Dangbis v Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

Judgment Cited authorities 11 Cited in Precedent Map Related
Vincent
Judgment Date05 November 2020
Neutral Citation[2020] HKCA 896
Year2020
Judgement NumberCACV161/2020
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV161/2020 MERINO NATIVIDAD DANGBIS v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 161/2020

[2020] HKCA 896

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 161 OF 2020

(ON APPEAL FROM HCAL 555/2019)

________________________

BETWEEN

MERINO NATIVIDAD DANGBIS Applicant
And
TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE Putative Respondent
DIRECTOR OF IMMIGRATION Putative Interested Party

________________________

Before: Hon Lam VP and Pang JA in court
Date of Hearing: 29 October 2020
Date of Judgment: 5 November 2020

________________________

J U D G M E N T

________________________

Hon Pang JA (giving the Judgment of the Court):

Introduction

1. On 3 June 2020, Deputy High Court Judge K W Lung (“the Judge”) refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 22 February 2019. In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 18 May 2018 rejecting the applicant’s non-refoulement claim.

2. On 10 June 2020, the applicant filed a Notice of Appeal against the Judge’s decision.

Background

3. The applicant is a Philippine national. She was previously employed as a domestic helper. She travelled between Mainland China and Hong Kong after taking up her employment in 2003. She last entered Hong Kong on 27 February 2005 as a visitor and has overstayed since 1 March the same year. The applicant surrendered to the Immigration Department on 24 August 2009. She raised a non-refoulement claim on 12 July 2013.

4. The applicant’s claim was based on the fear that if she were to return to the Philippines, she would be harmed or even killed by her neighbours, especially one Antonio Almoza who, with his men, had harassed her mother for land that her mother had transferred to her. The factual background was succinctly summarized by the Judge in [4] – [5] of the Form CALL-1 ([2020] HKCFI 1012).

5. Because the applicant had a prior torture claim which was unsuccessful before both the Director and the Board, the Director assessed the applicant’s current claim on all applicable grounds that were not previously considered. By a notice of decision dated 18 May 2018, the Director found against that claim. The grounds covered by that decision were BOR 3 risk[1], persecution risk[2], and BOR 2 risk[3].

6. The applicant appealed to the Board against the Director’s decision of 18 May 2018. For that, the applicant attended an oral hearing on 17 January 2017. Rejecting the applicant’s evidence on the facts, the Board dismissed the appeal on 22 February 2019. The Board found her evidence to be imagined, exaggerated, illogical and based on hearsay.

Decision of the court below

7. On 27 February 2019, the applicant sought leave from the court to apply for judicial review against the Board’s decision of 22 February 2019. As stated in the supporting affirmation for her Form 86, her grounds for seeking relief were:

(1) Procedural impropriety: failure to conduct sufficient inquiry into the relevant country of origin conditions; the Board failing to consider BOR 2 claim; failure to properly apply para 2 of UN Committee Against Torture General Comment No.2;

(2) Procedural impropriety/irrationality: failed to give reasons for BOR 3 risk or fail to show sufficient basis to support its conclusion;

(3) Error /Misdirection in law: failing to take into account the psychological strain and threats to her personally;

(4) No sufficient basis to conclude that she would not be subjected to torture or BOR 3 risk.

8. Following a hearing at which the applicant appeared in person, the Judge refused to grant leave to apply for judicial review on 3 June 2020. The reasons for the refusal were set out at [15] – [19] of the Form CALL-1 ([2020] HKCFI 1012, HCAL 555/2019), as follows:

“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 Court of Appeal in Re: Moshsin Ali [2018] HKCA 549 (CACV 54/2018) at §42 held that the Board’s decision is final, subject to judicial review by the court. However, there is no evidence to show that the Board erred in its finding of the facts or in the application of the laws to the case.

17. Grounds (1) and (4) are her opinions without any evidence to support them. Ground (2) is not true as the Board had given reasons for BOR 3 risk. Ground (3) was not raised before the Board. It is irrelevant.

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

CONCLUSION

19. Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant her leave to apply for the intended judicial review. Accordingly, I dismiss her...

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