MILLAN IMMACULADA TRAISO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 329/2019

[2019] HKCA 1196

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 329 OF 2019

(ON APPEAL FROM HCAL 1644/2018)

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J U D G M E N T

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Hon Yuen JA (giving the Judgment of the Court):

Introduction

1.1.  This is an appeal by Ms Millan Immaculada Traiso (“the appellant”) from an order of DHCJ K.W. Lung (“the Judge”) given on 16 July 2019 dismissing her application for leave to start judicial review proceedings.  The Judge’s reasons for that order were given in a document referred to as the “Form CALL-1” (“the Judge’s Decision”)[1].

1.2.  The appellant had applied to the Judge for leave to start judicial review proceedings to quash the decision of the Torture Claims Appeal Board (“TCAB”). The TCAB made its decision on 8 August 2018 rejecting the appellant’s claim that she should not be removed from Hong Kong and returned to her country (“claim for non-refoulement”).  The TCAB’s Decision (defined in [7.2] below) was an appeal against the decision of the Director of Immigration (“the Director”) who had earlier rejected that claim.  

Background

2.  The appellant is a national of the Philippines now aged 48.  She was married and has 2 sons.  She separated from her husband in 2013.  She came to Hong Kong to work as a domestic helper in 2014.  After her second employment contract was prematurely terminated on 25 June 2016, she overstayed in Hong Kong and surrendered herself to the Immigration Department on 25 July 2016.  She raised a claim for non-refoulement on 25 July 2016 and lodged her non-refoulement claim form on 29 December 2017. 

The appellant’s allegations

3.  The appellant’s allegations in support of her claim have been set out in detail in the TCAB’s Decision (defined in [7.2] below) and in gist in the Judge’s Decision.  Put briefly, what she alleged was that:

-  After the appellant separated from her husband, she became the bread winner of the family.  In around April 2014, she borrowed 150,000 Pesos from AL (“the Creditor”) to support her family and to pay the agency fee to work as a domestic helper in Hong Kong.  The appellant alleged that the Creditor was very influential and was very close to some politicians in the Philippines. 

-  On 11 July 2014, the appellant came to Hong Kong to work as a domestic helper.  While she was in Hong Kong, her mother borrowed 300,000 Pesos from the Creditor under her name to repair her house which had been damaged during a typhoon.  However her contract was prematurely terminated in March 2016 after she was discharged from hospital. She returned to the Philippines on 15 March 2016 but subsequently got another job to work as a domestic helper in Hong Kong. 

-  On 1 June 2016, the appellant came to Hong Kong but her contract was prematurely terminated on 25 June 2016. As a result, she was unable to repay the loans.  She has overstayed in Hong Kong since 24 July 2016.

-  In around July 2016, her mother told her that the Creditor demanded repayment and threatened her mother that he would kill the appellant and her children if she failed to repay the loans.  Her mother asked the appellant not to return home.  Her mother then moved back to Negros Occidental together with her children as the Creditor did not know their address there.  The appellant still owes the Creditor a substantial amount of money.

-  The appellant considered that internal relocation is not a viable option as the Creditor is influential and powerful and would be able to locate her.  In addition, she was not able to get assistance from the police as she did not have money to bribe the police.

4.  The appellant’s claim was examined to see if she would face any of the following risks if returned to the Philippines: “BOR 3 risk”, “persecution risk”, “torture risk” and “BOR 2 risk”. 

5.1.  What is often referred to as “BOR 3” risk (ie covered by article 3 of the Hong Kong Bill of Rights Ordinance Cap.383) is a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment.

5.2.  “Persecution risk” refers to the risk of persecution covered by the non-refoulement principle under article 33 of the 1951 Convention relating to the status of refugees and its 1967 protocol, in brief, a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.

5.3.  “Torture risk” refers to a foreseeable and real present risk of torture covered by Part VIIC of the Immigration Ordinance Cap.115, in brief, severe physical or mental pain or suffering inflicted with state acquiescence, to obtain information, or as punishment or intimidation, or based on discrimination. 

5.4.  What is often referred to as “BOR 2” risk (ie covered by article 2 of the Hong Kong Bill of Rights Ordinance) is the risk of violation of the right to life.

The Director’s Decision

6.  The Director’s representative had an interview with the appellant.  The appellant had legal assistance to prepare her claim.  After the interview, the Director rejected the appellant’s claim for reasons set out in a decision given on 19 January 2018 in respect of “BOR 2 risk”, “BOR 3 risk”, “persecution risk”, and “torture risk”.

The TCAB’s Decision

7.1.  The appellant appealed to the TCAB which held a hearing at which the appellant was present and had the assistance of an interpreter.  She testified at the hearing.

7.2.  The TCAB reviewed the evidence of the appellant in detail.  The TCAB dismissed the appeal (“the TCAB’s Decision”).  Essentially, the TCAB did not accept that the appellant was a truthful witness as the TCAB found that her evidence was vague and inconsistent, e.g. she did not know where the Creditor was from even though she claimed everyone in Negros Occidental knew him; she could not recall the name of her friend who had introduced her to the Creditor; she knew nothing about the damage to her house and the cost of repairs even though that was the alleged reason for her mother asking the Creditor for the second loan; she alleged no repairs had been undertaken in more than 2 years even though that was the alleged reason for taking out the second loan; and she has had no contact with her mother and her sons even though she alleged they had allegedly been threatened.  In view of the above among other matters, the TCAB concluded that she had not made up her claim for non-refoulement protection in Hong Kong ([38-44]).  The TCAB found that her claim in relation to the threat from the Creditor was not true.  Even if it were true, it was solely a personal dispute ([61]).       

Application for leave to start judicial review

8.  The appellant then took out an application in the High Court for leave to start judicial review proceedings to quash the TCAB’s Decision.  The appellant set out her grounds in her Form 86 which was summarized by the Judge in [11] of the Judge’s Decision as follows:

“(1) the hearing bundle was given to her shortly before the appeal hearing and she did not have sufficient time to prepare her case;

(2) the contents of the hearing bundle were in English and she was unable to obtain interpreter service;

(3) she was confused at the appeal hearing;

(4) the Adjudicator had relied upon hearsay information and outdated materials in relation to Country of Origin Information (“COI”).”

The Judge’s Decision

9.  The appellant appeared at the hearing before the Judge.  As mentioned earlier, the Judge refused leave for reasons set out in [12] - [17] of the Judge’s Decision:

“12. The applicant appeared before me. She confirmed that she had had a fair interview with the Immigration officer and a fair hearing before the Adjudicator. She also said that she could read English herself. She understood the Director’s Decision and the Board’s Decision.

13. It is quite obvious that the Board did not accept the facts as stated by the applicant in support of her claim. Therefore, the applicant had no factual basis for her claim. Those grounds above are quite irrelevant. Nevertheless, I shall deal with them.

14. Grounds (1) to (3) fail as they are inconsistent with what the applicant said before this Court.

15. Grounds (4) is her opinion without any evidence in support of it. It fails.

16. The applicant fails to show that she has a reasonable chance of success in her proposed judicial review.

CONCLUSION

17.  Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant her leave to apply for judicial review. Accordingly, I dismiss her application.”

Appeal to Court of Appeal

10.  By a Notice of Appeal filed on 19 July 2019, the appellant appealed the Judge’s order to this court.  She stated the following in her Notice of Appeal (sic):

“…… the [appellant] will face hardship if he is to return back to his home country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.”

Legal Principles

11.  The position in law in an appeal to the Court of Appeal, as established by a number of judicial precedents, is as follows.

11.1.  The primary decision makers in relation to an appellant’s claim for non-refoulement are the Director and (in an unsuccessful claim) the TCAB.  They assess the evidence and are the finders of fact.  

11.2.  When the matter comes before a judge of the Court of First Instance on an application for leave to start judicial review proceedings to quash the decision of the TCAB, the judge’s position is not the same as that of the Director or the TCAB.  Although the judge will adopt an enhanced standard when scrutinizing the decision of the TCAB due to the seriousness of the issue at hand, he does not hear the claim afresh as if he was the TCAB.  In keeping with established principles of judicial review, the judge cannot intervene by way of judicial review unless there are errors of law, or procedural unfairness, or irrationality in the TCAB’s decision.  The relevant cases establishing this position have been conveniently set out in Nupur Mst v Director of Immigration[2]and we will not repeat them here.

11.3.  Subsequently if the matter comes before the Court of Appeal, the focus is further refined to the scrutiny of the decision of the judge as challenged in the grounds of appeal.  Again, in keeping with established principles governing appeals from a refusal of a judge to grant leave to start judicial review proceedings, the Court of Appeal would only interfere if the appellant can demonstrate that the judge had made errors of law, or had failed to take into account relevant matters, or was otherwise plainly wrong[3].  Generally fresh evidence would not be admitted unless the requirements in Ladd v Marshall[4] are satisfied. Nor would the Court of Appeal generally entertain new arguments based on facts, when those arguments should have been canvassed before coming to this court.

Skeleton Submissions

12.  After filing her Notice of Appeal, the appellant was given directions by the Registrar of Civil Appeals to file skeleton submissions.  The appellant filed her skeleton submissions on 13 September 2019 submitting that “high standards of fairness” are required for the Judge to deal with her application for leave for judicial review of the TCAB’s Decision.   

Discussion

13.  Applying the legal principles set out above, it is clear that none of the circumstances permitting this court to interfere with the decision of the Judge is present in this case. 

14.  The appellant’s grounds of appeal do not bear any relationship to the Judge’s Decision. The TCAB’s Decision was based on its findings of fact.  The grounds for judicial review from that decision were clearly and correctly dealt with by the Judge as set out above.  She accepted before the Judge that the hearing before the TCAB was fair and that she could read English.  COI did not feature in the TCAB’s decision as her claim was rejected on the facts.  Before this court, she said that she had nothing to add.

15.  We can discern no error of law, nor can we see any relevant matters which the Judge had failed to take into account, nor can it be argued that the Judge was plainly wrong in refusing leave to commence judicial review proceedings against the TCAB’s Decision.

Order

16.  For the reasons set out above, this appeal must be dismissed.