BARROGA ESCOLASTICA TEJERO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 1540/2018

[2020] HKCFI 1047

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 1540 of 2018

     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 refused.

Observations for the Applicant:

1.  The Applicant is a 51-year-old national of the Philippines who last arrived in Hong Kong on 8 October 2008 with permission to work as a foreign domestic helper until the expiration of her employment contract on 8 October 2010 or within two weeks of its early termination.  However, when her contract was prematurely terminated on 12 December 2009, she did not depart and instead overstayed and was subsequently arrested by police on 6 July 2013, for which she was convicted and sentenced to prison for 12 weeks.  Upon her release and when she was referred to the Immigration Department for removal, she raised a non-refoulement claim on the basis that if she returned to the Philippines she would be harmed or killed by her creditor for failing to repay her loan.  She was subsequently released on recognizance pending the determination of her claim. 

2.  The Applicant was born and raised in Bucay, Abra, the Philippines. After leaving school she worked as a domestic helper in various places, and eventually in Hong Kong in 2002.

3.  In 2008 before starting her 4^th employment contract in Hong Kong, the Applicant returned to the Philippines to borrow a loan from a friend in Abra to be repayable by monthly instalment with interest.  On 8 October 2008 the Applicant returned to Hong Kong to start her 4^themployment contract, and remitted her monthly loan instalment payment to her creditor from her salary.

4.  However, whenshe stopped remitting her loaninstalment payments to her creditor since October 2009, and when she was told by her mother that her creditor had come to their home in Abra to demand repayment from the Applicant, and had threatened to kill her when she returned to the Philippines, and so the Applicant became fearful for her life and therefore overstayed in Hong Kong, and upon her subsequent arrest and was referred to the Immigration Department, she raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 20 March 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 8 May 2015 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance (“HKBOR”), Cap 383 (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

6.  In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her creditor upon her return to the Philippines as low due to the absence of past ill-treatment from him, that there was no reliable evidence of any real intention of her creditor to harm or kill her other than to put pressure on her to repay her loan, that in any event that it wasa personal monetary dispute between them without any official involvement that state/police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in the Philippines with a large population of 107 million people spread across a vast territory of more than 300,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other area of the Philippines away from her home district in large cities such as Quezon City where it would be difficult if not impossible for her creditor to locate her.

7.  On 20 May 2015 the Applicant filed an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s Decision, and for which she attended an oral hearing on 16 August 2016 before the Board during which she confirmed her claim as stated in her NCF and answered questions raised of her claim by the adjudicator for the Board.  On 23 February 2017 her appeal was dismissed by the Board which also confirmed the Director’s Decision.

8.  In its decision the Board found no reliable evidence of any threats from her creditor directed at the Applicant, that in any event it was a personal monetary dispute between the Applicant and her creditor without any official involvement that state or police protection as well as reasonable internal relocation within the Philippines would be available for the Applicant to move to other area away from her home district where she can safely re-establish her life without any risk of being located by her creditor that her claim for non-refoulement protection failed on all applicable grounds.

9.  On 30 March 2017 the Director on his own initiative by a letter to the Applicant invited her to submit any additional facts which may be relevant to her claim, and by a Notice of Further Decision dated 13 July 2017 the Director again rejected her claim in the absence of any response from her to the invitation to submit additional facts which may be relevant to her non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

10.  The Applicant again lodged an appeal to the Board against the Director’s Further Decision, of which the Board decided that it was not necessary to conduct any oral hearing and proceeded to deal with the appeal on paper and in the absence of the Applicant.  On 27 July 2018 her appeal was again dismissed by the Board which also confirmed the Further Decision of the Director.

11.  In this decision the Board assessed the Applicant’s BOR 2 risk on the basis of the materials before it in the absence of any additional facts from her for which it found unnecessary to hold another oral hearing, and found no evidence that the Applicant would be at any risk of harm under BOR 2 risk if refouled to justify her appeal which was dismissed.

12.  On 3 August 2018 the Applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in her supporting affirmation of the same date she put forward the following grounds for her intended challenge:

(1) that she was not provided with legal representation for her BOR 2 risk before the Director or for her appeal before the Board;

(2) that she was not given language assistance in her appeal to the Board;

(3) that it was not fair to reject her BOR 2 risk when she was not aware of the invitation letter for her to submit additional facts for BOR 2 risk;

(4) that it was not fair to dismiss her appeal without any oral hearing before the Board;and

(5) that the Board failed to elaborate on its findings as to her grounds of appeal in dismissing her appeal.

13.  For her complaint in Ground (1) of not being provided legal representation in her appeal before the Board, the Court of Appeal has already held that neither the high standardsof fairness laid down in Secretary for Securityv Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute rightto free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

14.  The Applicant already had the benefit of legal representation in presenting her case to the Director, and was able to testify and make representation in her appeal hearing before the Board and to answer questions put to her by the adjudicator without difficulty.  In the premises I do not find anything amiss arising from the lack of legal representation in her appeal process, and I do not think this ground is reasonably arguable.

15.  As for her complaint under Ground (2) of not being provided with language assistance for translating documents in her appeal to the Board, it is clear that having worked and lived in Hong Kong for years that she would be able to read and speak English, while many of the documents such as her NCF was completed on her instructions to her legal representation from DLS, and that she was also assisted by an interpreter at her appeal hearing before the Board during which she never raised any issue with translation.  In the absence of any particulars or specifics to demonstrate that the basis of her claim has indeed been wrongly interpreted or wrongly understood by the Board, I find this complaint of the Applicant simply speculative and without basis.

16.  Regarding her complaint in Ground (3) that she was not aware of the Director’s written invitation for her to submit additional facts for her claim under BOR2 risk, it is for her to prove that she in fact did not receive the letter for which she did not provide any details or documentary evidence, but even if that was the case, given the nature of her claim even on her own case that it clearly does not engage the BOR 2 risk, and that in her present proceedings now before me, she still did not adduce any additional facts which may be relevant to BOR2 risk.  As such I do not find any basis or merit in this ground of the Applicant.

17.  As for her complaint in Ground (4) of not being provided an oral hearing for her BOR 2 risk, as held by the Court of Appeal in ST v Betty Kwan  [2014] 4 HKLRD 277, there is no absolute entitlement to an oral hearing, as it is ultimately a question of fairness looking at the overall circumstances, and in the Applicant’s case, given the nature of her claimed fear of harm from her creditor over a monetary dispute which clearly does not engage BOR 2 risk, and in the absence of any additional facts from the Applicant despite the Director’s invitation, I do not find anything wrong with the Board’s exercise of discretion not to hold another oral hearing for the Applicant’s second appeal, and I do not find this ground reasonably arguable either.

18.  As regard her complaint under Ground (5) that the Board did not elaborate on her grounds of appeal, it is plainly factually incorrect as the Board clearly did in both its first decision ([35] – [40]) and second decision ([8] – [13]), and in the absence of any error of law in those decisions being clearly and properly identified by the Applicant, I do not find this ground arguable either.

19.  As has been repeatedly emphasized by the Court of Appeal, the evaluation of risk of harm is primarily a matter for the Director and the Board who are entitled to make their evaluation based on the evidence available to them, and that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being properly and clearly identified by the applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

20.  The fact is that it has been established by both the Director and the Board in their decisions that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of the Philippines, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

21.  In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

22.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse her leave application.

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