RE PUNO MARIEROL MONTASES

CACV 344/2018

[2018] HKCA 946

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 344 OF 2018

(ON APPEAL FROM HCAL NO. 716 of 2017)

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JUDGMENT

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

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Woodcock (“the Judge”) given on 24 July 2018 refusing her leave to apply for judicial review.  The intended judicial review is against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 4 September 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 24 April 2015 and 5 June 2017 rejecting her non-refoulement claim.  

2.  The applicant is a Filipino national.  She first entered Hong Kong on 10 December 2012 to work as a domestic helper.  She departed Hong Kong on 11 October 2013.  She re-entered Hong Kong on 7 December 2013 and was permitted to remain as a domestic helper until 7 December 2015.  Her employment was terminated prematurely following her arrest on 16 August 2014 for an offence of theft.  She was subsequently convicted and sentenced to six months’ imprisonment. 

3.  On 11 November 2014, the applicant lodged a non-refoulement claim based on her fear of being ill-treated, tortured and persecuted by a drug dealer and his son as well as by her creditor. The basis of the applicant’s claim was set out in full in the Director’s Notice of Decision dated 24 April 2015 and the Board’s decision dated 4 September 2017, and summarised by the Judge in [3] to [6] of the Form CALL-1 dated 24 July 2018, [2018] HKCFI 1629. 

4.  Briefly stated, the applicant’s case is that her former boyfriend, with whom she had two children, were killed by a drug dealer in the Philippines for losing a substantial quantity of drugs. The applicant reported the drug dealer to the police which resulted in his arrest, conviction and imprisonment. It was noted by the Board, however, that the police never called upon her for further investigation, nor was she ever required to attend court as a witness. After one telephone call from the drug dealer’s son in which he threatened to kill her, the applicant left home for Manila where she stayed until she came to Hong Kong again in December 2013.  The applicant also said she had borrowed a loan from a loan shark and was unable to make repayment.  She fears the loan shark will harm her when she returns home.   

5.  By a Notice of Decision dated 24 April 2015, the Director rejected the applicant’s claim having regard to the torture risk[1], the BOR 3 risk[2] and the persecution risk[3]. By a Notice of Further Decision dated 5 June 2017, the Director rejected the applicant’s claim on the BOR 2 risk ground.[4] 

6.  The applicant appealed to the Board.  The Board considered it was not necessary to hold an oral hearing.  The Board assumed, for the purpose of the determination, that the applicant’s account was truthful and accurate. It, however, concluded that the factual circumstances relied on by the applicant did not indicate that the applicant would be at risks of being harmed by the drug dealer, his son or the applicant’s creditor.  By its decision dated 4 September 2017, the Board dismissed the appeal.      

7.  The applicant filed a Form 86 on 4 October 2017 seeking leave to judicially review the Board’s decision.  Her grounds for seeking relief can be summarised as follows:

(1)   Procedural impropriety in that the Board failed to conduct an oral hearing for the appeal.

(2)   Procedural impropriety in that the Board failed to give her a chance to present evidence to support the BOR 2 risk claim.

(3)   Miscarriage of justice in that there was no legal representation in the appeal to the Board.

(4)   Error of law in that the Board ignored Country of Origin information (“COI”) that was in her favour.

8.  At the applicant’s request, an oral hearing was held on 6 March 2018 to hear her leave application.  The Judge held that the intended judicial review was unarguable and had no prospect of success, and refused to grant leave to apply for judicial review.  The Judge gave her reasons in [12] to [17] of the Form CALL-1 as follows:

“12. The applicant’s first ground is without merit.  Although it is never a decision to be taken lightly, I agree with the adjudicator that in this case an oral hearing could be dispensed with and the necessary high standard of fairness could still be maintained.  The applicant had legal representation when her claim was dealt with by the Director therefore, she was protected.  When the adjudicator dealt with the appeal there were no questions of credibility or law to be addressed; she accepted her evidence in its entirety.  The evidence was not complex and obviously her problems were of a purely private nature that needed no clarification.  The adjudicator fully understood her case and applied the law properly.  The applicant’s grounds showed she had nothing new to submit for the rehearing.

13.   In her affirmation the applicant accuses the Director of not sending her a letter to invite her to submit information to support a BOR 2 risk claim.  However, during the oral hearing of 6 March 2018 the applicant admitted that she had moved home and had not informed the Immigration Department quickly enough of a change of address.  There is no merit in this ground.

14.   The third ground is a complaint by the applicant she was not provided with legal representation for her appeal/petition.  The court was reminded that a ‘high standard of fairness’ should be maintained but legal representation for this applicant only extended to the claim process before the Director.  Once the Director dismissed her claim the applicant received no further free legal advice or assistance.  The applicant submits this is a ‘violation of the principle of achieving high standard of fairness and should be considered a miscarriage of justice’.

15.   It is clear that where the applicant’s fundamental human right not to be subjected to torture is involved, it has been held “high standards of fairness” must be observed by the decision-maker when making the relevant administrative decision, see Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, para 44.  That frequently referred to standard applies to the assessment undertaken by a decision-maker of a torture claim.  That approach for the adjudicator is paramount and cannot be stressed enough.  However, the applicant here has taken it out of context by implying it should mean and include the automatic provision of legal representation to her beyond what was provided by the duty lawyer scheme to her.  I do not agree, the fact that it is not automatic cannot be defined as a miscarriage of justice.  The fact the applicant was unrepresented in her appeal has not been shown to be procedurally unfair.  The duty lawyer scheme will continue to represent applicants in their appeals if they are of the view there is merit in their cases.  Their assessment is on a case-by-case basis.

16.   The applicant’s last ground submits the TCAB ignored COI in her favour; information which showed injustice, terror and threats on her community all over the Philippines.  That statement is not specific to her claim or her fears.  There are no particulars in the affirmation.  The applicant made no report to the police about the threat she received.  The adjudicator obviously adopted the COI relied on by the Director and noted the applicant had not personally been affected by any corruption.  The adjudicator makes reference to the COI she referred to in paragraphs 43 and 44 of her decision without quoting from it but cites the references.  I see no merit in that ground.

17.   I do not find any ground that shows there was an error of law by the adjudicator.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.  Same applies to the decision of the Director.”

9.  By a Notice of Appeal dated 27 July 2018, the applicant appealed the Judge’s decision on the following grounds:

(1)   She could not return to her country because her life would be in danger.

(2)   As a human being, she has the right to life.

10.  In her written submission lodged on 5 October 2018, the applicant repeated the basis of her non-refoulement claim and reiterated that her life would be in danger if she were to return to the Philippines.  She further stated that she is now living with a partner of Indian nationality and she gave birth to their son, who is now ten months’ old, in Hong Kong.  It was said that if she were refouled to the Philippines, the family would be separated and their son’s future would be in jeopardy.

11.  We heard the appeal on 6 December 2018.  The applicant indicated she had nothing to add to what was in her notice of appeal and written submission.

12.  What was stated by the applicant in her notice of appeal and written submission does not amount to viable grounds of appeal.  Judicial review is not a re-assessment of the merits of an applicant’s non-refoulement claim.  The same applies to appeals in the Court of Appeal, whose function is not to assess the risks of harm or the merits of an applicant’s non-refoulement claim.  The focus of appeals should be on the correctness of the judge’s decision, and the Court of Appeal will only disturb the judge’s decision if it can be demonstrated that there are errors in his decision.     

13.  The applicant asserts that her life will be in danger in her home country, but the Board had concluded that even accepting the entirety of her account, there was no basis for finding that she would be at risks of harm, ill-treatment or torture from either the drug dealer and his son or her creditor.  The Judge was of the view that there was no ground to judicially review the Board’s decision.  In the applicant’s grounds of appeal and all her representations to us, she has not pointed to any error in the Judge’s decision and reasons.  We also do not discern any error in the Judge’s refusal to grant leave for judicial review.  In the circumstances, there is no basis for this Court to interfere with the Judge’s decision. 

14.  For the above reasons, the appeal has no merit. Accordingly, we dismiss the appeal.