DELA CRUZ EILEEN TOLENTINO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1579/2018

[2020] HKCFI 1333

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1579 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 be refused.

Observations for the Applicant:

Procedural history

1.  The applicant entered Hong Kong legally as a foreign domestic helper (“FDH”) on numerous occasions between 2009 and 2014.  Her last contract of employment was terminated on 27 November 2014 and thereafter she overstayed.  She surrendered to the police on 27 January 2015 and was convicted of breach of condition of stay on 31 January 2015 and was given two weeks’ imprisonment suspended for one year.  The applicant submitted a non‑refoulement claim by way of written representation on 2 February 2015.  Her non‑refoulement claim form was submitted on 29 December 2017.

2.  The applicant attended a screening interview on 18 January 2018.  The Director of Immigration (“the Director”) dismissed her claim on all grounds by Notice of Decision (“the Decision”) on 24 January 2018.  She appealed the Decision to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr Christian Patrick Carney (“the Adjudicator”), heard her appeal on 11 May 2018.  The Adjudicator considered her appeal on all applicable grounds including BOR 2 and refused her appeal on 27 July 2018.

3.  The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 8 August 2018 and did not request an oral hearing.  The matter was therefore considered on the papers.

Background

4.  The applicant is a Filipino national.  She was born on 10 September 1982, in Guimod.  She had a college education and was married but separated from her husband in the Philippines in 2006.  She has a partner in Hong Kong and a son of that union.  In 2009, the applicant decided to obtain a contract as an FDH in Hong Kong in order to pay off significant debts which had arisen to pay her father’s medical bills.  The applicant was able to repay the monthly instalments upon this loan whilst working in Hong Kong between 2009 and 2012.  However, when she returned to the Philippines in 2012, the loan shark demanded immediate repayment of the remainder.  In so doing, the applicant was injured and required medical treatment in which she received 12 to 14 stitches to her hand.  She did not tell the doctor or police how the wound was inflicted.  As a result of the demand and attack, the applicant returned to Hong Kong as an FDH.  When that contract was terminated, she was too scared to return to the Philippines and overstayed.

The non-refoulement claim

5.  Under the Unified Screening Mechanism (“USM”), the applicant’s claim is to be assessed on all applicable grounds which are:

i.     Risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”).  Under torture risk, the applicant must establish she has substantial grounds for believing she will be subjected to torture if returned to her home state. Those grounds cannot be speculative or theoretical and the risk of torture must be real and personal.  The standard of proof is a low one.

ii.     Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“the HKBORO”), Cap 383 and Article 7 of the ICCPR (“BOR 3 risk”).  Under BOR 3, the applicant must establish that she has a genuine and substantial risk of being subject to mental or physical torture; cruel, inhuman or degrading ill treatment; or punishment, if returned to her home state.  The level of such mental or physical torture etc. must reach a minimum level of severity.

iii.     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”).  Under persecution risk, the applicant must establish that she has a well-founded fear that there is a real chance that she will face persecution based upon race, religion, nationality or membership of a social group or political opinion if she is expelled and returned to her home state.

iv.     Risk of a violation of the right to life under Article 2 of section 8 of the HKBORO, Cap 383 and Article 6 of the ICCPR (“BOR 2 risk”).  Under BOR 2, the applicant must establish a real risk that she will be arbitrarily deprived of her life, have a death penalty imposed upon her; or be the victim of genocide or otherwise be deprived of her rights under BOR 2.

6.  It is the duty of both the Director and the Adjudicator to weigh all of the available credible, reliable evidence and ascertain whether the applicant had established the factual basis of her claim. The Director and the Adjudicator must then assess the level of harm the applicant says she fears.  Each ground of claim above has a relevant level of risk.  It is for the applicant to establish that she is the subject of such risk.  Under the HKBORO, she must show substantial grounds for believing that the harm which she fears is “foreseeable, real, personal and present”.  The question is whether there is a real risk or real chance of the occurrence or recurrence of the harm which she fears.

Decision of the Adjudicator

7.  The Adjudicator analysed the applicant’s claim on all applicable grounds.  He arranged for an oral hearing and treated the appeal as a rehearing.  He correctly set out the law and key legal principles including the burden and standard of proof.  The Adjudicator canvassed the factual basis of the claim in detail and asked a number of questions about how the applicant had sought to resolve the problem of the outstanding debt.  He also canvassed relocation as the applicant had returned to the Philippines on several occasions in recent years and not come to any harm.  The applicant was unwilling to live away from her family.  In support of this she mentioned her son and his medical needs which she could not afford to address in the Philippines.  As his father is a Hong Kong resident he receives free treatment in Hong Kong.  He does not earn a great deal and she has no support from his family.  The Adjudicator found the applicant to be sincere and honest and accepted her version of events.  He noted that the applicant is in a committed relationship here in Hong Kong and that the couple wish to marry but cannot do so until she obtains a divorce in the Philippines which she has not yet sought to obtain.  It was also accepted that her son, born in Hong Kong and a Hong Kong resident, has a chronic kidney condition.  Unfortunately, the facts as presented, do not establish a claim under any head.

8.  It is noted that the Adjudicator went to great lengths to consider the child and his treatment and did so under the heading of availability of relocation.  The child’s health in and of itself was not and cannot form a basis of claim.  Although the Adjudicator did refer to his current medical condition and lack of up‑to‑date evidence, such evidence could not have affected the determination of the appeal.

Leave to apply for judicial review

9.  Judicial review is not a rehearing of the merits of the applicant’s original application for refugee status.  This is an application to apply for leave to judicially review the decision of the Adjudicator.  The applicant must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by those bodies or persons when dealing with her application in order to obtain leave to judicially review them.

Grounds of review

10.  There were no grounds of review.  The applicant wishes to remain in Hong Kong in order to obtain medical treatment for her son, who is a Hong Kong resident and who has a father who lives here.  She has not complained of any specific procedural irregularity, unfairness or unreasonableness.  The applicant has a duty to state the grounds of her intended judicial review and show that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.  I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

11.  Despite the fact that the applicant did not submit any grounds of review, I have considered the papers carefully.  I have looked in particular inter alia, into the issue of her son’s health, but I have not found any error of law or procedure.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout.  The applicant’s case was wholly without merit.  Despite the onus being upon the applicant, the Adjudicator engaged in a joint endeavour with the applicant and considered all relevant criteria; gave the applicant a reasonable opportunity to state her case and enquired into that case appropriately.  He was sympathetic to her position but he was required to consider her application within the confines of the applicable regime principles.  There is no criticism of his determination, which was open to him on the facts and eminently reasonable and fair.  

12.  In my judgement, there is no reasonably arguable basis upon which the applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if she were to be granted leave.  I therefore refuse leave for judicial 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