RE MORENO IMELDA SAGUN

CACV 604/2018

[2019] HKCA 422

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 604 OF 2018

(ON APPEAL FROM HCAL NO. 389 OF 2018)

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J U D G M E N T

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Hon Yeung Ag CJHC (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Josiah Lam (“the Judge”) given on 19 December 2018 in HCAL 389/2018 refusing leave to the applicant to apply for judicial review.  The applicant is a national of the Philippines. She first came to Hong Kong in 2006 as a domestic helper.  Between 2006 to mid-2015, she secured a total of six domestic helper contracts in Hong Kong.  She last entered Hong Kong from Macau on 14 June 2015 to work and her employment contract was terminated prematurely on 12 November 2015.  She did not leave and overstayed since 27 November 2015.  On 28 December 2015, she surrendered to the Immigration Department and raised a non-refoulement claim.  Her claim was based on the fear that she would be harmed or even killed by her husband who had abused her all the time.  The applicant also claimed that drug syndicates would also harm or kill her as her husband had failed to settle the sale proceeds of drugs entrusted to him by the drugs syndicates.   

2.  The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2018] HKCFI 2766.  We shall not repeat the same here.

3.  By the Notice of Decision dated 18 May 2017, the Director of Immigration (“the Director”) decided against the applicant’s claim. The decision covered BOR 2 risk, BOR 3 risk, torture risk, and persecution risk. 

4.  The applicant appealed to the Torture Claims Appeal Board (“the Board”).  After an oral hearing on 8 January 2018, the Board dismissed the appeal on 5 March 2018. Although the Board accepted the applicant’s assertion that she had suffered from domestic abuse by her husband, it had not attained the severity and intensity forcing her to have no choice but to leave the Philippines to save her life.  The Board pointed out that the applicant’s evidence that she came to Hong Kong for work, and it had been a period of over 12 years since the applicant left her husband.  The Board also pointed out that the applicant had returned to the Philippines on at least three occasions and on one of the occasions (being a period of 2 years from April 2007 to April 2009), she did not come into any direct contact with her husband.  Regarding the allegations of threats by drug syndicates, the Board found the applicant’s evidence was totally incredible and devoid of merit.  The applicant did not mention anything about her alleged fear of the drug syndicates if refouled in her written representation.  For the reasons mentioned above, the applicant’s non-refoulement protection claim was rejected on all applicable grounds.

The Judge’s Decision

5.  The intended application for judicial review was in respect of the decision of the Board. The Form 86 filed on 12 March 2018 contained the following grounds for judicial review:

(1)   The Board had unlawfully fettered his discretion by refusing the applicant’s appeal on the grounds that they did not satisfy the requirement;

(2)   The Board acted in a procedurally unfair manner in dealing with the applicant’s appeal;

(3)   The decision of the Board in refusing the applicant’s appeal were unreasonable or irrational in the public law sense, or are a result of procedural errors or unfairness;

(4)   The Board failed to meet the greater care and duty owed to a self-represented litigant;

(5)   Lack of language assistance; and

(6)   The Board did not allow sufficient time for the applicant to prepare for the appeal and to read the appeal bundle.

6.  On 19 December 2018, the Judge gave his decision refusing to grant leave to the applicant to apply for judicial review.  In the CALL-1 Form, after summarizing the background of the case, as well as the decisions of the Director and the Board, the Judge gave the following reasons at [28] – [41] for his refusal to grant leave:

“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’. (Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.) Nevertheless, it is said in Re Islam Rafiqul:–

The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision-makers are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.” (CACV 219/2018 [2018] HKCA 570, para 14(1)).

30. The Applicant complained she received the appeal bundle only on or about 2 January 2018 before the Board hearing scheduled for 8 January 2018.

31. According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’ and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’, the Director shall send copies of the hearing bundle to the Board and to the Applicant no later than 5 working days prior to the date of the hearing.

32. The Applicant received the appeal bundle 6 calendar days (or 5 working days) prior to the Board hearing. Thus, the bundle was served on the Applicant in time.

33. The appeal bundle would consist mostly of documents that had been seen or submitted by the Applicant during the first-tier screening of her claim. The Applicant's case was not difficult and there was no evidence to suggest the bundle was voluminous or difficult.

34. A few days were certainly not a long period but could still be sufficient for reasonable and diligent preparation on the part of the Applicant. The Applicant failed to show she really needed more time to prepare for the appeal. There was no evidence to show the Applicant had so complained to the Adjudicator or asked for adjournment during the appeal hearing.

35. The Applicant said in her affirmation that she answered all the questions honestly. That would mean she knew well what was being asked and she answered at will. She was not confused.

36. The Applicant mentioned she was not given sufficient legal assistance. She had been represented by the Duty Lawyer Service up to the Director’s decision dated 18 May 2017.

37. The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings (CACV 284/2017 Re Paswan Shibu Lal, para 21). The Applicant failed to show this court how her case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.

38. In the present application, the Applicant had Form 86 and her affirmation prepared in English. Apparently, the Applicant could find someone to assist her with interpretation/translation and dealing with English documents at all material times. Furthermore, the Applicant was assisted by qualified interpreters when she was still represented by the Duty Lawyer Service and also in the screening process before the Director and the Adjudicator. The Applicant had much exaggerated her language problem.

39. The Applicant complained the Adjudicator had on outdated cases or information not officially recognised or simply hearsay. There was no evidence of that. The Applicant also failed to point out the specifics.

40. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding, conclusion and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. He had engaged in 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 Adjudicator’s report showed that he was acquainted with the facts. He considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim. None of the Applicant’s complaints is substantiated.

Conclusion

41. The Applicant's complaints are not reasonably arguable. She has no realistic prospects of success in the sought judicial review. I therefore refuse to grant her leave for the review.”

The Appeal

7.  In the Notice of Appeal filed on 21 December 2018, the applicant put forward the following grounds of appeal:

“The Hoa (Honourable) Justice errors materially in law in failing to adopt a proper structured approach to credibility and no indication is provided that a reasoned (and) considered approach was taken in respect of evaluating these material (see Nazir Qaisar v. TCAB HCAL 546/2017). So I challenge the Honourable Justice’s judgment para 19, 20 and 40, the Hon Judge not taken account my domestic violence from my husband and the drug syndicate. I was involved with them but the Board and also the Judge did not care.”

8.  In compliance with the direction given by Master Au-Yeung on 21 January 2019, the applicant lodged her written submission on 1 March 2019 in which she reiterated and elaborated her complaints as set out in the Notice of Appeal.

9.  At the hearing of the appeal on 1 April 2019, the applicant again repeated her complaints, saying that she would be harmed if she were to be repatriated. 

Discussion

10.  The ground mentioned in the Notice of Appeal has no merit.  The applicant merely repeated her case and voiced out her disagreement with the Judge’s decision. The Judge had correctly pointed out that the Board had rejected the applicant’s appeal based on its assessment of her credibility in respect of her case on the threats allegedly received from the drugs syndicate and that the applicant came to Hong Kong to work and not because of the domestic abuse, see [19] and [20] of the CALL-1 Form.  We agree with the Judge’s finding and conclusion reached at [40] of the CALL-1 Form that the Board, in assessing the applicant’s case, had adhered to the high standards of fairness and the decision was properly made and well justified.  We find nothing amiss from the Judge’s decision.  The ground of appeal is devoid of merit and is doomed to failed.

11.  For these reasons, we do not see any prospect of success in the intended application for judicial review.  We dismiss the appeal accordingly.