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HCAL405/2018
[2018] HKCFI 2771
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 405 of 2018
BETWEEN
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Villareal Esperanza Valdez |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
1st Putative Respondent |
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Director of Immigration |
2nd Putative Respondent |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s Decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge Josiah Lam:
Leave to apply for judicial review be refused.
Observations for the Applicant
Background
1. The Applicant is a national of the Philippines. She is now aged 38 (DOB: 1 August 1980).
2. The Applicant claimed she would be harmed or killed by her husband Allan and two creditors called Danny and Marcelo.
3. The Applicant married Allan in 1997. She went to work in Abu Dubai between 2005 and 2009. In Abu Dubai, she had a relationship with a Filipino man called Hernani. They had a child Matthew.
4. In December 2009, the Applicant returned to the Philippines with Hernani and Matthew.
5. In January 2010, the Applicant was reunited with Allan. Allan learnt of the Applicant's affairs. He questioned her. Each time, their argument ended up in a fight. The first fight occurred in March 2010. The Applicant was injured. She complained to the police. The police said they would lock up Allan if he hit her again.
6. The Applicant said the police did not follow up her case. She was so scared of Allan that she planned to leave the Philippines for Hong Kong. She thus borrowed 200,000 pesos from Danny and Marcelo in September 2010 in order to pay for her application for employment as domestic helper in Hong Kong. The Applicant said Danny was the leader in her village while Marcelo was a rich and powerful businessman. The Applicant alleged Marcelo would bribe the police for his own deeds.
7. On 9 September 2010, the Applicant left the Philippines for Hong Kong to work as domestic helper.
8. On 23 April 2011, the Applicant returned to the Philippines on holiday. She came back to Hong Kong later but returned to the Philippines again in July 2011. The Applicant last entered Hong Kong on 12 July 2011 to resume working as domestic helper.
9. The Applicant said she had not repaid any money to Danny and Marcelo. Since September 2011, while she was in Hong Kong Danny and Marcelo had approached her mother in the Philippines three times to ask for repayment. They threatened the Applicant's mother that they would kill the Applicant if the money was not paid back to them.
10. The Applicant's parents reported the matter to the Philippines police. The police said they would not offer assistance unless the Applicant's parents offered them bribes. The parents could not afford to do so.
11. On 13 June 2012, the Applicant was arrested for theft in Hong Kong and her domestic helper contract was then terminated prematurely.
12. On 17 July 2012, the Applicant lodged a torture claim.[1] The Director of Immigration (“the Director”) refused the Applicant's torture claim on 9 November 2012. [There was no evidence of appeal against the Director's 2012 decision.]
13. On 13 March 2014, the Applicant raised a non-refoulement claim.
14. The Applicant had not contacted Allan since 2013. On the other hand, Danny and Marcelo continued to harass her parents in the Philippines between 2013 and 2015. The two creditors threatened to kill the Applicant. The Applicant's parents complained to the police every time but the latter took no action.
15. In the ensuing two-tier screening process here, the Director and the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”) respectively refused the Applicant’s claim with respect to the remaining three applicable grounds: risk of persecution,[2] risk of torture or cruel, inhuman or degrading treatment or punishment (BOR3 risk)[3] and risk of violation of the right to life (BOR2 risk)[4].
16. On 13 March 2018, the Applicant applied for leave for judicial review.
Timeline
17. Things happened in this order: –
| 2010-9-9 |
The Applicant left the Philippines to come to Hong Kong to work as domestic helper. |
| 2011-4-23 |
The Applicant went back to the Philippines on holiday. She came back to Hong Kong later and returned to the Philippines again in July 2011. |
| 2011-7-12 |
The Applicant last entered Hong Kong to resume working as domestic helper. |
| 2012-6-13 |
The Applicant was arrested for theft and her employment was then terminated prematurely. |
| 2012-7-17 |
The Applicant lodged a torture claim. |
| 2012-11-9 |
The Director refused the Applicant's torture claim. [“the Director's 2012 decision”] |
| 2014-3-13 |
The Applicant raised a non-refoulement claim |
| 2016-10-18 |
The Director refused the Applicant’s claim with respect to the remaining three applicable grounds: persecution risk, BOR2 risk and BOR3 risk. [“the Director's 2016 decision”] |
| 2018-1-3 |
The Applicant appeared before the Board for appeal against the Director's 2016 decision. |
| 2018-2-28 |
The Adjudicator refused the Applicant’s claim with respect to these three applicable grounds: persecution risk, BOR2 risk and BOR3 risk. [“the Board's decision”] |
| 2018-3-13 |
The Applicant applied for leave for judicial review. |
Respondents
18. The Unified Screening Mechanism is a two-tier process. The Director screens an applicant’s non-refoulement claim first; the applicant may appeal to the Board which deals with his/her case on a rehearing basis.
19. In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Board and the Director as respondents. The Board is the first putative respondent; the Director is the second putative respondent.
20. In Re Moshsin Ali, the Court of Appeal states that “the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”[5] The Applicant cannot seek leave for judicial review against the Director's decision. Therefore, I shall deal with her application in relation to the Board's decision only.
The Director's decision
21. In his decision dated 9 November 2012, the Director did not accept the Applicant faced any torture risk. [There was no evidence of appeal against the Director's 2012 decision.]
22. In his decision dated 18 October 2016, the Director did not accept the Applicant faced any persecution risk, BOR2 risk or BOR3 risk. He also considered reasonable state protection and internal relocation were available to the Applicant in any event. The Director refused the Applicant's claim with respect to those three applicable grounds.
The Board's decision
23. The Applicant appealed to the Board against the Director's 2016 decision. The Adjudicator interviewed the Applicant on 3 January 2018.
24. The Adjudicator accepted the Applicant had conflicts with Allan due to her ex-marital affairs. There was domestic violence. The Adjudicator, however, noted the Applicant had not been inflicted with ill-treatment to a minimum level of severity by Allan. The Applicant had no contact with Allan for several years already. The Adjudicator considered Allan would not wish to locate the Applicant now nor did he have the means to do so.[6]
25. Regarding the risk of harm from Danny and Marcelo, the Adjudicator had concern about the Applicant's allegation but was prepared to accept its face value. Even so, the Adjudicator found the Applicant had not been inflicted with ill-treatment to a minimum level of severity by the two creditors. The Adjudicator considered Danny and Marcelo did not wish to locate the Applicant now nor did they have the means to find her.[7]
26. In either case regarding Allan or Danny and Marcelo, the Adjudicator found reasonable state protection and internal relocation were available to the Applicant.[8]
27. The Adjudicator did not accept there was any persecution risk, BOR2 risk or BOR3 risk from Allan or Danny and Marcelo. He refused the Applicant’s claim with respect to those three applicable grounds.
Grounds of judicial review
28. In her affirmation, the Applicant made complaints against the Director and the Adjudicator. As said in paragraph 20 above, I shall deal with the Applicant's application for leave for judicial review in relation to the Board's decision only.
29. The Applicant complained the Adjudicator failed to conduct sufficient enquiry or critical analysis of relevant country-of-origin information ("COI"); failed to provide justification as to why certain COI was preferred and cherry-picked information.
30. The Applicant also complained the Adjudicator failed to take into account her psychological strain due to threats from the enemies. She objected to the Adjudicator’s finding that she had not been inflicted with ill-treatment to a minimum level of severity.
31. The Applicant accused the Adjudicator failed to consider extended state acquiescence.
32. The Applicant complained there was insufficient basis for the Adjudicator to find she faced no risk of harm. In particular, she said the Adjudicator was wrong to conclude there was no BOR3 risk and failed to give reasons.
Court hearing
33. The hearing took place on 5 and 13 July 2018. The Applicant was in person. A Tagalog interpreter provided service in court.
34. The Applicant said a friend helped her to prepare Form 86 and the affirmation. All the grounds of judicial review were in the affirmation. The Applicant had nothing to add to those grounds.
35. The Applicant confirmed she had submitted all of her case to the Director and the Adjudicator for their consideration of her non-refoulement claim.
Discussion
36. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
37. 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’.[9] 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.” [10]
38. The Applicant complained the Adjudicator failed to conduct sufficient enquiry and critical analysis of COI. I do not agree. The Adjudicator had considered sufficient relevant COI to conclude that reasonable state protection and internal relocation were available to the Applicant.[11] Her finding was not Wednesbury unreasonable. The Adjudicator need not state her mental process in the report. There was no evidence the Adjudicator cherry-picked information.
39. The Adjudicator was not satisfied there was state acquiescence of any kind.
40. The Applicant's claim of psychological suffering was bare assertion. It was not Wednesbury unreasonable for the Adjudicator to find the Applicant had not been inflicted with ill-treatment (physical and mental) to a minimum level of severity by her husband or by the two creditors. The Applicant had not passed the high-threshold test. The Adjudicator had proper basis to conclude the Applicant failed to establish any BOR3 risk, BOR2 risk or persecution risk. She gave sufficient and clear reasons for her decision.
41. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for her finding, conclusion and decision which were not Wednesbury unreasonable. She made no errors of law and there was no procedural unfairness. The Adjudicator 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 was acquainted with the facts of the case. She 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
42. 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.
Dated 24th day of December 2018
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(Alan Ngan)
for Registrar, High Court |
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
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Notes for the Applicant:
If leave has been granted, the Applicant or his solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant on 24/12/2018
Villareal Esperanza Valdez
Applicant’s ref. no:
Nil.
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 24/12/2018
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
1st Putative Respondent’s ref. no.:
USM 5051/16/10/60/F288
Director of Immigration
2nd Putative Respondent’s ref. no.:
QA T/C 1948/16 (formerly RBCZ 3000728/14)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] As defined in Part VIIC of the Immigration Ordinance, Cap 115, which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
[2] By reference to the non-refoulement principle under Articles 33 and 1A(2) of the 1951 Convention relating to the Status of Refugees.
[3] Under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] Under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[5] CACV 54/2018, para 45.
[6] The Board's decision, paras 40-43.
[7] Ibid., paras 44-47.
[8] Ibid., paras 48-54.
[9] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[10] CACV 219/2018 [2018] HKCA 570, para 14(1).
[11] The Board's decision, paras 48 and 51.
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