RE MARTIN REBECCA MOKYAT

CACV 216/2021

[2021] HKCA 1345

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 216 OF 2021

(ON APPEAL FROM HCAL 1233 OF 2018)

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J U D G M E N T

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Hon Lisa Wong J (giving the Judgment of the Court):

The appeal

1.  This is an appeal by the abovenamed applicant, Martin Rebecca Mokyat, against the order made by Deputy High Court Judge To (“Judge”)  on 23 April 2021 (“Judge’s Decision”), refusing her leave to commence judicial review proceedings.  The intended application for judicial review sought to quash the decision of the Torture Claims Appeal Board (“Board”)  given on 21 June 2018 (“Board’s Decision”), dismissing the applicant’s appeal against the rejection by the Director of Immigration (“Director”)  of her non-refoulement claim (“NRF Claim”).  Such rejection was embodied in, and communicated to the applicant by, a notice of decision dated 9 August 2017 (“Director’s Decision”).

Basis of NRF Claim

2.  The basis of the NRF Claim made by the applicant, a national of the Philippines now aged about 44, is a fear of being harmed or even killed by her estranged husband who abused her from 1997 to 2013.

3.  For a detailed summary of the violent treatment inflicted upon the applicant, see paragraph 6 of the Director’s Decision and paragraphs 5 to 14 of the Board’s Decision.

Overstaying in Hong Kong and lodgment of NRF Claim

4.  The applicant arrived in Hong Kong on 2 December 2014 as a tourist, with permission to stay until 16 December 2014.  She overstayed after the expiry of her visa until 24 July 2015 when she surrendered to the Immigration Department.

5.  The applicant raised the NRF Claim by written representation on 23 May 2017.  She submitted a Non-refoulement Claim Form dated 10 July 2017 and attended a screening interview on 25 July 2017, with legal representation from the Duty Lawyer Service.

Director’s Decision

6.  The Director’s Decision found the NRF Claim unsubstantiated under any of the applicable grounds for non-refoulement protection: torture risk[1], persecution risk[2], “BOR 2” risk[3] and “BOR 3” risk[4]. 

Appeal to Board and Board’s Decision

7.  The applicant appealed against the Director’s Decision to the Board on 21 August 2017.  The Board conducted a rehearing of the NRF Claim on 15 December 2017, at which the applicant testified before, and answered questions by, the Board through an Ilocano/English interpreter.

8.  While accepting that the applicant was subjected to physical and psychological violence from her husband on a number of occasions between 2000 and October 2013 when the applicant left her husband, the Board held against the applicant on each applicable ground for non-refoulement protection.

(1)  First, the applicant’s husband acted as a private individual in abusing the applicant.  There was no state involvement or acquiescence.  Further, the independent country of origin information (COI)  indicates that reasonable state protection, if sought, would be available to the applicant.  Therefore, no substantial ground exists to support a belief that the applicant would face a real torture risk. 

(2)  The applicant and her husband have separated, without any direct contact or communication, since October 2013.  The applicant volunteered that, if returned to the Philippines, she would avoid him by living in Cebu, which would mitigate the risk (if any).  Reasonable state protection would also be available to further reduce the risk of future abuse, if any.  There are thus no substantial grounds for believing that the applicant would face a real risk of being subjected to CIDTP if returned to the Philippines to support a claim of BOR 3 risk.

(3)  It follows from the risk assessment of torture and under BOR 3 that there is no real risk that the applicant would suffer harm amounting to persecution by her husband. Also, the applicant can safely and reasonably relocate to say Manila or Cebu to avoid her husband. 

(4)  Regarding BOR 2 risk, it follows from the above that the applicant would not be at risk of being arbitrarily deprived of her life in the Philippines.  

Application for leave for judicial review and Judge’s Decision

9.  Although the notice of application for leave to apply for judicial review issued by the applicant under HCAL 1233/2018 on 29 June 2018 (“Form 86”)  contained no proposed grounds for judicial review, as noted by the Judge in [12] of the Form CALL-1 dated 23 April 2021, [2021] HKCFI 1130 (“Form CALL-1”), the supporting 9 page affirmation complained about procedural unfairness as a result of lack of legal and language assistance; that the Board’s Decision was unreasonable, illogical and gave no weight to the threat that the applicant would face; and that the Board did not explain how it allocated weight to the COI.

10.  The Judge dismissed the Form 86 after a hearing in open court.  His careful and detailed reasons can be found in [13] to [19] of the Form CALL-1 (footnotes noting citations omitted):

13.  As for her complaint about lack of language assistance, the Applicant’s complaint is that the majority of the documents in the appeal bundle were in English and without translation.  They were given to her shortly before the oral hearing before the Board.  No one explained the documents to her.

14.  In Re Zafar Muazam, Re Zunariyah, Re Zahid Abbas, Re Tariq Farhan, and Re Lopchan Subash, the Court of Appeal held that neither the high standard of fairness laid down in Sakthevel Prabakar v. Secretary for Security nor the judgment of FB v. Director of Immigration prescribes that a CAT claimant or a claimant of BOR 2 or BOR 3 or persecution risks has an absolute right to free legal representation at all stages of the proceedings. 

15.  The Applicant alleged that she was refused legal representation during the screening interview.  That is a false and most unfair accusation.  The record of the screening interview shows that she was represented by Miss Teresa Liu of the Duty Lawyer Service.  She had the benefit of legal representation and interpretation services of a qualified interpreter at the screening interview and in presenting her case to the Director. 

16.  She complained that she had not been given a copy of the NCF and therefore did not know if the interpreter had properly translated the basis of her claim.  She had the services of a qualified interpreter at the screening interview and oral hearing before the Board.  The interpreters were fully qualified and had taken an oath or affirmation to fully and accurately interpret for the Applicant.  The Applicant had been provided with the appeal bundle before the hearing which is basically made up of her NCF, the record of the screening interview and the decision of the Director in the Notice, including the COI.  She certainly knew what were in her NCF and the record of the screening interview.  At the hearing before the Board, she confirmed through the interpreter that the evidence she gave to the Immigration Department were true and correct.  It lies ill in her mouth to attempt to overturn the result of the hearing on her bald and gratuitous suspicion that the interpreters had not properly interpreted for her.

17.  As for her complaint about the COI, the COI are published by credible and authoritative organisations, including Country Report on Human Rights Practices for 2016: Philippines published by the United States Department of State.  As noted by the Board, in the face of these COI the Applicant did not claim, contrary to the above COI that there existed in the Philippines a pattern of gross, flagrant or mass violations of human rights.  There was no COI to the contrary.  The question of weight did not arise.  Her complaint is groundless.

18.  As for the overall or general complaint about irrationality and unreasonableness in the Board’s finding, these grounds of complaint are against the finding of facts by the Board.  The Court pointed out that the function of the court in judicial review is not to re-assess the non-refoulement claim afresh.  The court will only scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality.  Having rigorous examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; and observed a very high standard of fairness.  It was on that basis that the Board found there was no factual basis to support the Applicant’s claim for non-refoulement protection under any of the four applicable grounds.

Conclusion

19.  Accordingly, the Court concluded that there was nothing that shows there was any error of law or procedural unfairness or irrationality in the Decision of the Board.  The Court found that the Board adhered to a high standard of fairness.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable.  The Applicant’s claim is not reasonable arguable.  There is no realistic prospect of success.  Accordingly, leave to apply for judicial review is refused.

Appeal to Court of Appeal - grounds of appeal and submission

11.  The applicant advanced no grounds of appeal, properly so called, in the notice of appeal filed herein on 4 May 2021.

12.  In her skeleton argument dated 9 August 2021, the applicant expressed dissatisfaction with the Judge for concurring with the Board on the assessment of risk of harm and the availability of state protection (when the Filipino government fails to guarantee protection to its citizens)  and reasonable relocation options (which will compel the applicant live like a fugitive without any dignity).  She also provided a link to a news report on rising domestic violence since the Covid-19 lockdown in the Philippines.

13.  The applicant appeared in person at the hearing of the appeal on 17 September 2021.  She was provided with an Ilocano/English interpreter.  She added nothing that is not said in her notice of appeal or skeleton argument.

Discussion

14.  The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The role of the court in judicial review is not to re-assess the non-refoulement claim.  The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality.  See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].

15.  An appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh.  What the appellate court is concerned with is the decision of the judge at first instance, which is considered in light of the grounds of appeal raised by the applicant.  The Court of Appeal will interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong.  See again Nupur Mst v Director of Immigration at [14(2)].

16.  Applying the aforesaid principles, there is nothing wrong for a judge of the Court of First Instance to consider an application for judicial review of a decision of the Board on the basis of the findings of fact made by the Board unless the applicant can make good any errors of law, procedural unfairness or irrationality on the part of the Board in arriving at the findings.  The applicant had clearly not done so. 

17.  The fact that domestic violence has been on the rise while the Philippines is in a state of lockdown in the midst of the Covid-19 pandemic does not assist the applicant given the existence of reasonable internal relocation options so that the applicant can live away from her abusive husband.  Indeed, she told the Board that she would move to Cebu if returned to the Philippines.

18.  In the premises, the applicant did not in the notice of appeal or submission before us identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was plainly wrong.  Nor can we discern any.

Disposition

19.  For these reasons, we see no basis to interfere with the Judge’s Decision. Accordingly, we dismiss the appeal.