ALCANTARA LOLITA SERRATO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL723/2017

[2018] HKCFI 887

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 723 of 2017

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s Decision (Ord. 53 r. 3)

Following;

Leave to apply for judicial review be refused.

Observations for the Applicant

Background

1.  The Applicant is a Philippines national.  She is now aged 43 (DOB: 12 November 1974). 

2.  On 19 November 2005, the Applicant came to Hong Kong to work as a domestic helper.  The contract was for two years but it ended prematurely.  The Applicant applied to the Immigration Department for extension of stay.  She was last permitted to stay until 2 June 2007.  She, however, overstayed and only surrendered to the Immigration Department on 11 June 2012. She lodged a torture claim on 2 August 2012, saying her husband Arnold in the Philippines had repeatedly made threats to kill her after knowing she had extramarital relationships with two other men.  

3.  The Applicant married Arnold in the Philippines in 1992.  They had two children.  Later, the Applicant went overseas to work as a domestic helper.  In 2005/2006, she worked in Singapore and met a man called Ryan.  They had an affair.  Arnold came to know about that.  He threatened to kill the Applicant.  In 2006, the Applicant came to Hong Kong to work as a domestic helper.  She developed a relationship with a Hong Kong resident called Elmer.  She gave birth to two children for Elmer in 2008 and 2013 respectively.  Arnold knew about that too.  He repeatedly threatened to kill the Applicant if he would see her in the Philippines with her children born out of wedlock.

4.  The Applicant’s first torture claim (made in August 2012) was rejected by the authority on 22 May 2013.  She sought further non-refoulement protection.

5.  In the ensuing screening process (“the Unified Screening Mechanism”), the Director of Immigration (“the Director”) first refused the Applicant’s claim on three applicable grounds: (i) risk of torture,[1] (ii) risk of persecution,[2]and (iii) risk of torture or cruel, inhuman or degrading treatment or punishment (CIDTP risk or BOR3 risk)[3].

6.  Later, the Director refused the Applicant’s claim on a fourth applicable ground: (iv) risk of violation of the right to life (BOR2 risk)[4].

7.  The Applicant appealed to the Board only on three applicable grounds: persecution risk, CIDTP risk (or BOR3 risk) and life risk (or BOR2 risk).

8.  On 29 August 2017, the Adjudicator dismissed the Applicant’s appeal on the three appealed applicable grounds.  

9.  On 6 October 2017, the Applicant filed Form 86 (the notice of application for leave to apply for judicial review) [Folio 1].  In support of her application, the Applicant submitted a one-page affirmation also dated 6 October 2017 [Folio 2] and Exhibit “A” [the Board's decision].

Chronology of events

10.  Things happened in this order: –

2005-11-19	The Applicant came to Hong Kong to work as a domestic helper.
2007-6-2	The Applicant began to overstay in Hong Kong after her work contract had concluded prematurely.
2012-6-11	The Applicant surrendered to the Immigration Department.
2012-8-2	The Applicant filed a torture claim.
2013-5-7	The Director interviewed the Applicant.
2013-5-22	The torture claim was rejected
2013-6-17	The Applicant filed a non-refoulement claim.
2016-2-4	The Director held screening interview with the Applicant.
2016-2-16	The Director refused the Applicant’s claim on these three applicable grounds: (i) torture risk, (ii) persecution risk, and (iii) CIDTP risk (or BOR3 risk).  [“the Director’s decision”]
2016-2-29	The Applicant appealed to the Board.
2017-6-14	The Director invited the Applicant to submit additional facts for the consideration of a fourth applicable ground: life risk (or BOR2 risk).
2017-6-28	The Applicant failed to submit additional facts by deadline or thereafter.
2017-7-7	The Director refused the Applicant’s claim on the fourth applicable ground.  [“the Director’s further decision”]
2017-8-29	The Adjudicator dismissed the Applicant’s appeal on the three appealed applicable grounds on consideration of documents only: persecution risk, CIDTP risk (or BOR3 risk) and life risk (or BOR2 risk);there being no appeal by the Applicant on torture risk.  [“the Board’s decision”]
2017-10-6	The Applicant applied for judicial review.

Respondent/Interested party

11.  The Unified Screening Mechanism is a two-tier screening process.  The Director screens an applicant’s non-refoulement claim first; the applicant may appeal to the Board which deals with his/her complaint on a rehearing basis.

12.  In the present case, the Applicant did appeal to the Board but only on three applicable grounds: persecution risk, CIDTP risk (or BOR3 risk) and life risk (or BOR2 risk).[5]

13.  In Form 86, the Applicant listed the Board as the sole proposed respondent.  She prayed for non-refoulement protection. She did not name the Director as respondent.

14.  In the circumstance, the sole respondent of the current application for judicial review is the Board; the Director is only an interested party.

No request of hearing

15.  Order 53, rule 3 of the Rules of the High Court states:

The judge may determine the application for leave without a hearing, unless a hearing is requested in the notice of application, and need not sit in open court; and in any case the Registrar shall serve a copy of the judge’s order on the Applicant.

16.  In Form 86, the Applicant did not request a hearing.  Nor did she state such a wish in her affirmation.  There is nothing unambiguous in the current application for leave for judicial review that calls for a hearing.  As such, I proceed to deal with the application on consideration of documents only.

Director of Immigration (the Director)

17.  In the Director’s decision, the immigration officer considered that the risks claimed by the Applicant were low.  The officer found there was no issue of state acquiescence; reasonable internal relocation was available.  

18.  On 16 February 2016, the officer rejected the Applicant’s non-refoulement claim on these three applicable grounds: (i) risk of torture, (ii) risk of persecution, and (iii) risk of torture or cruel, inhuman or degrading treatment or punishment (CIDTP risk or BOR3 risk). 

19.  Later, the Director wrote to the Applicant inviting her to submit additional facts for the consideration of a fourth applicable ground, i.e. risk of violation of the right to life (BOR2 risk).  However, the Applicant did not respond by the deadline of 28 June 2017 or thereafter.

20.  In the Director’s further decision, the immigration officer considered that the Applicant failed to establish a personal and real risk of violation of the right to life.  

21.  On 7 July 2017, the officer refused the Applicant’s claim on the fourth applicable ground: life risk (or BOR2 risk).

TCAB/NCPO (the Board)

22.  According to para. 5 of the Adjudicator’s report, the Applicant only appealed in respect of these three applicable grounds, i.e., persecution risk, CIDTP (or BOR3 risk) and life risk (or BOR2 risk).

23.  The Adjudicator accepted the facts as claimed by the Applicant.  There being no dispute of facts and considering the facts were sufficient for his decision, the Adjudicator decided that no hearing was required.  He dealt with the Applicant’s appeal on consideration of documents only.[6]

24.  In his report, the Adjudicator set out the facts and the law clearly.  He was alive to the issues of the Applicant’s case.  He referred to relevant Country-of-Origin Information (“COI”).

25.  The Adjudicator found that even accepting all the facts claimed by the Applicant, the latter still failed to prove there was any real risk. He considered that reasonable state protection and internal relocation were available to the Applicant.

26.  On 29 August 2017, the Adjudicator rejected the Applicant’s non-refoulement claim on the three appealed applicable grounds.

Grounds for judicial review

27.  In her affirmation dated 6 October 2017 (Folio 2), the Applicant wrote:

“…I want to fik [sic] for judicial review to review my claim, because Im [sic] afraid to go back to Philippines. My husband there threatened me he will kill me. I think the decisions is not fair.”

Discussion

28.  Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

29.  A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant.  Therefore, high standards of fairness must be achieved.  The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[7]

30.  The Applicant’s case was simple and clear; there was no ambiguity for the Adjudicator to clarify.  He accepted the facts claimed by the Applicant.  There was really no need for him to hold any hearing. Thus, the Adjudicator was right to deal with the Applicant’s appeal on consideration of documents only.  

31.  Although accepting the facts as submitted by the Applicant, the Adjudicator found there was no real risk against the Applicant to justify non-refoulement protection.

32.  The Adjudicator was acquainted with the law and the facts of the Applicant's case. He had proper basis for his findings and conclusions, which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. There is no substance in the Applicant’s complaint against the Board's decision.

33.  The Director is only an interested party in the current application for judicial review. However, for the sake of complete discussion, I would say that even if the Applicant would like to seek judicial review against the Director, she would have no arguable grounds to complain. In fact, the Director's decision dated 16 February 2016 was more than three months old when the Applicant made the current application on 6 October 2017. It was time-barred for judicial review in the absence of any good reason to justify delay.[8]  The Director's further decision dated 7 July 2017 was still within the limitation period. In any event, the Director’s decision and further decision were not Wednesbury unreasonable. The Director made no errors of law and there was no procedural unfairness.

Conclusion

34.  In my judgement, the Director and the Board had each engaged in proper joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate her case. The reports of the Director and the Board respectively showed they were acquainted with the facts and the law. They were entitled to render those findings, conclusions and decisions as they did and those findings/conclusions/decisions were all reasonable. The Director and the Board had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.

35.  The Applicant's complaint is not reasonably arguable either against the Board or the Director. She has no reasonable prospects of success in the sought judicial review. I therefore refuse to grant her leave for the review.

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

[1]  As defined in Part VIIC of the Immigration Ordinance, Cap 115, which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

[2]  By reference to the non-refoulement principle under Articles 33 and 1A(2) of the 1951 Convention relating to the Status of Refugees.

[3]  Under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4]  Under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[5]  The Adjudicator’s report, para 5.

[6]  The Adjudicator’s report, para 43.

[7]  Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.

[8]  O. 53, r. 4 of the Rules of the High Court.