LAZAGA GINA CARBONELL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 378/2019

[2024] HKCFI 1454

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 378 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

1.  Leave to amend the notice of application for leave to apply for Judicial Review (“Form 86”) be granted; and

2.  Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 11 February 2019 for leave to apply for judicial review (the “leave application”) of the decision of an adjudicator of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) in his personal capacity dated 30 November 2018 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 13 February 2018 (the “Notice”). As the Decision was made by the adjudicator as a decision of the Board, the Board should be the proper intended respondent. Leave is therefore granted to amend the Form 86 to the above effect.

2.  The Applicant is a Philippine national. She last entered Hong Kong on 22 August 2013 to work as a foreign domestic helper. She overstayed in Hong Kong after her contract of employment was terminated. She surrendered to the authorities on 23 August 2016. On 24 January 2017, she submitted a written signification for non-refoulement claim. In due course, her claim was assessed on all four applicable grounds under the Unified Screening Mechanism (“USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. Her claim was dismissed by the Director’s Notice. Her appeal against the Notice was dismissed by the Decision of the Board. She now applies for leave to apply for judicial review of that Decision.

The Applicant’s case

3.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by her with legal assistance and the record of her screening interview in the presence of her lawyer. In gist, she claims she will be harmed by her husband and his group of gansters (“his gang”) upon her return to the Philippines.

4.  The Applicant, now aged 46, was born in San Fernando, the Philippines. She received 12 years of formal education and obtained a college qualification. She had worked as a waitress in the Philippines and then as a foreign domestic helper in Abu Dhabi, Dubai and Hong Kong.

5.  She married her husband in 2001 and gave birth to their son in 2002. After that, she went to work in Abu Dhabi. She returned to the Philippines in 2004. She discovered her husband had joined a group of gangsters, became violent and abused alcohol and drugs. She went to work in Dubai again in 2009.

6.  After her return in 2010, her husband assaulted her and her son. He also threatened to kill her when she refused to give him money. On two occasions, her husband slapped her and burned her with cigarettes. On another occasion, he cut her hand with a knife. She treated herself with betadine and alcohol. Her husband also forced her to have sex. Being unable to withstand the abuse, the Applicant went to her parent’s home in San Fernando with their son. She tried to file a police report, but the officer refused to take her complaint without giving any reason.

7.  On the next day, her husband arrived at her parents’ home with his gang. They beat the Applicant and their son. They also beat her parents, brother and neighbours when they tried to intervene. She believed the local police, who were friendly with her husband, had informed him about her attempt to file a complaint against him.

8.  A few days after the attack, her husband visited the Applicant with his gang again. He asked her for money. Out of fear, the Applicant gave him 40,000 pesos and some jewelleries.

9.  In February 2012, the Applicant and went to work in Hong Kong, leaving her son to the care of her family. She learnt from her neighbours in the Philippines that two arrest warrants had been issued against her and that the police were looking for her because her husband had filed a complaint with the police against her for kidnapping their son.

10.  The Applicant returned to the Philippines in 2013 because she could not contact her family. She went to her husband’s home and found that her family had been detained there. She gave her husband all the money she earned in Hong Kong for their release.

11.  Then she went to the city mayor’s office at Pagdaraon in San Fernando La Union to clear the case against her. She also filed a written complaint to the police against her husband and his gang. She believed the police took no action because they were friends with her husband.

12.  Presumably because of the Applicant’s complaint, her husband and his gang attacked her two or three times in Pagdaraon in 2013. The Applicant did not require medical treatment and it took her about six days to recover. She fled from place to place to avoid her husband. But, her husband was able to locate her in one of the locations (Tagudin Ilocos) and slapped her. Eventually, the Applicant returned to Hong Kong for work in August 2013.

13.  The Applicant claims it would be dangerous for her to return to the Philippines because her sister had told her in December 2017 that her husband was still looking for her and he would kill her if he found her. She believes she could not access state protection because she had no money to bribe the police for their assistance. She also believes internal relocation would not be viable because her husband could locate her anywhere in the Philippines and she has no one to assist her to relocate.

The finding of the Board

14.  The Board accepted that her husband had assaulted the Applicant on different occasions, either alone or together with his gang. Except for one occasion when he cut her hand with a knife, the attacks were limited to beating with bare hands and burning by cigarettes. The Board did not accept that her husband had forced her to have sex because this allegation was raised for the first time in the screening interview and was not mentioned in the NCF. The Board accepted that the Applicant had tried to file a police report at Pagdaraon once in 2009, which was rejected by a police officer. However, it did not accept that she had filed a written complaint against her husband at the city mayor’s office in 2013 and that arrest warrants had been issued against her at the instance of her husband because her evidence in those respects were inconsistent and incredible.

15.  The Board found the Applicant’s husband had multiple opportunities to inflict severe injury or harm on the Applicant but refrained from doing so. It found the past ill-treatments inflicted on her did not attain a minimum level of severity. From the nature and the low intensity of the past ill-treatment, the Board drew the inference that the future of risk of harm upon the Applicant’s return to the Philippines would be low.

16.  The Board noted that the last contact between the Applicant and her husband took place in 2014. There was no evidence that her husband had ever harmed her family in the Philippines. The Board therefore did not accept that her husband had any motivation to carry out the death threat issued against her years ago. It found that the Applicant would not face any of the proscribed risks of harm from her husband upon her return.

17.  The Board found that the Applicant’s husband and his associates were not public officials or acting in the capacity of the state, or with its consent or acquiescence when ill-treating her. It found the Applicant’s dispute with her husband was purely private in nature and had nothing to do with race, religion, nationality, membership of a particular social group or political opinion and therefore did not fall within the 1951 Convention relating to the status of Refugees and its 1967 Protocol. It also found that the Applicant had failed to provide any evidence or information to establish a real risk of danger against her life under BOR 2 Risk ground and that it is unlikely that the state will be unable to protect her if her husband and his gang were to go after her and attempt to kill her. It accepted the Applicant’s allegation that the Philippine police is corrupt and inefficient. However, on the basis of authoritative and credible country of origin information (“COI”)[5], it was satisfied that the rapid advancements and improvements in the police outweighed such defects. The Board was satisfied that adequate state protection is available to the Applicant on her return to the Philippines. Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found the Applicant had failed to establish the factual basis to support her claims for protection under any of the four applicable grounds under the USM. Hence, it dismissed her appeal against the Director’s Notice.

Legal principles applicable to judicial review

18.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. 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 court will scrutinize 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[6].

Grounds for judicial review

19.  Annexed to her Form 86 is a seventeen-page document titled “Grounds On Which Relief Is Sought”. The Applicant confirmed at the hearing that the document was prepared by someone on her behalf on the basis of what she told that person. She said she knew and understood what was stated in the document. However, she was unable to provide particulars of the grounds.

20.  This document is very familiar as the Court has come across similar documents in many other leave applications. It appears to be prepared from a template by some “friends” of the claimants, gratuitously or for reward, for their use regardless of the nature and facts of their case. It contains quotations from judicial precedents, statutes and a convention, legal arguments and grounds of application. Some of the arguments and grounds were repeated more than twice. Some of the grounds do not make sense whether by itself or in the context of this leave application. It includes, for example, a request to continue an anonymity order; but no such order had been made in this case. It took a lot of patience to read and understand these grounds. Some obviously meaningless and un-particularised grounds such as this will not be considered in this decision. Her grounds of review are summarised below:

(1)  Misdirection in the law: That the Applicant had to have experienced torture in the past in order to establish substantial grounds to believe there was risk of torture in the future (Item 1 on Page 15):

(2)  Procedural impropriety/unfairness: The Board failed to carry out sufficient research and inquiry into the COI, failure to take into account USHR 2010 and USRF 2010, Report on the ICJ Mission to Philippines by The International Commission of Jurists (“ICJ”), failure to obtain requisite documents (Item 2 on Page 16, Page 18);

(3)  Irrationality: Cherry-picking COI, giving weight to irrelevant COI, failure to give weight to relevant COI, relying on outdated COI based on information in 2012 and 2013 instead of information in 2016, resulting in a irrational decision, relying on news from sources which are not officially recognized or is hearsay (Item 3 on Page 16, Page 17, Page 18);

(4)  Irrationality: Failure to find whether there exists in the Philippines a consistent pattern of gross, flagrant or mass violations of human rights (Item 4 on Page 16);

(5)  Irrationality: Failure to analyse and assess state protection under the extended meaning, ie that the state had exercised due diligence or sufficient due diligence (Item 5 on Page 16);

(6)  Irrationality: Taking into account and putting weight on irrelevant, incorrect, inaccurate considerations or inferences and failure to give weight to those that are relevant, correct, etc (Item 5 on Page 16):

(7)  Procedural impropriety: Failure to call for psychological and psychiatric reports (Item 7 on Page 16);

(8)  Procedural impropriety/unfairness: Applying wrong standard of proof (Item 8 on Page 17); and

(9)  Procedural impropriety/unfairness: Failure at first instance by the assigned duty lawyer resulted in a lack of and/or insufficient legal representation, the Applicant was not legally represented before the Board, no language assistance, late delivery of hearing bundle, BOR 2 Risk decided without a screening interview (Item 9 on Page 17, Page 18, Page 19).

Ground (1) - The Applicant had to have experienced torture in the past to prove risk of harm in the future

21.  This ground may be directed at the following finding of the Board at paragraph 78 of the Decision:

“ 78. … I find that the ill-treatment from Husband and his gang on the [Applicant] did not attain a minimum level of severity, and that the low intensity of past ill-treatment … is indicative of a small future risk of harm …”

According to the Applicant’s evidence, the ill-treatment comprised of assaults by bare hand and kicks and the one single occasion of cutting of her hand by a knife. The Board found such injuries did not attain a minimum level of severity. From that fact it drew the inference that the harm likely to be inflicted on the Applicant in future would likewise not attain a minimum level of severity. It was on that basis the Board assessed her future risk of harm to be low. The inference was drawn on the basis of all the surrounding circumstances. Such an approach was approved by the English Court of Appeal in Karanakaran v Secretary of State for the Home Department[7]. There is no misdirection in the law. The Board never said that a claimant must have experienced torture in the past to establish risk of torture in the future or words to that effect. This ground and submission is a very distorted construction of the Board’s reason for its finding on this issue. Paragraph 17 of this decision is the true and proper construction of the Board’s reason for its finding.

Grounds (2) and (3) – Insufficient investigation into the COI, cherry-picking COI, giving weight to irrelevant COI, relying on outdated COI from 2012 and 2013, not giving weight to relevant and up-to-date COI in 2016, etc

22.  This ground is devoid of particulars. While accusing the Board of failing to make sufficient investigation into the COI, the Applicant did not identify the relevant and up-to-date COI which the Board could and should have considered. The Applicant mentioned USHR 2010 and USRF 2010, Report on the ICJ Mission to Philippines by ICJ, but did not produce a copy of the COI. These alleged COI could not be made available. At the hearing, the Applicant was asked about these COI. She was unable to identify or produce them. She said she did not have those COI she mentioned and did not know what they were. She never identified the particular information in these COI which she wished to rely on and which she alleged the Board of having failed to investigate, consider and give weight to. On the scarcity of particulars, this Court could not even determine by examining the available COI whether this ground is at all arguable.

23.  As for her complaint about the Board relying on out dated COI about 2012 and 2013 and not taking into consideration the up-to-date COI about 2015, the Decision shows the contrary. The Board had not referred to any COI about 2012 and 2013 but in fact considered 2016 COI, namely the Country Report of Human Rights Practices for 2016 published by the United States Department of State[8]. There is no substance in this ground.

Ground (4) - Failure to find whether there exists in the Philippines a consistent pattern of gross, flagrant or mass violations of human rights

24.  It was not the Applicant’s claim that there exists in the Philippines a consistent pattern of gross, flagrant or mass violations of human rights. The Applicant confirmed there was no such consistent pattern of gross flagrant or mass violations of human rights in the Philippines.

Ground (5) - Failure to analyse and assess state protection under the extended meaning, ie that the state had exercised due diligence or sufficient due diligence

25.  Availability of adequate state protection is usually a finding which would reduce or mitigate the risk of harm facing a claimant. The Board considered the available COI. It accepted on the one hand that the police and authorities in the Philippines are branded as inefficient and corrupt, but on the other that the government has taken and is taking active steps to tackle corruption and ineffectiveness and to raise awareness on human rights within the police[9]. Upon balancing the conflicting COI, the Board came to the view that the benefit of the reforms and protection available outweigh the negative COI. It found adequate state protection is available[10]. It also found other assistance from non-governmental organisations is available to battered women in the Philippines. Further, the Board found as a fact that the Applicant’s risk of harm is low and as a matter of mixed law and fact that she has failed to prove her entitlement to protection under any of the four applicable grounds without having to rely on adequacy of state protection. In respect of BOR 2 Risk ground, the Board mentioned under its conclusion in paragraph 133 that if the perpetrators will go after the Applicant it did not see there is a real chance that the state will be unable or unwilling to protect her. These are finding of fact well supported by available COI. Furthermore, the finding about availability of state protection is unnecessary for the Decision in view of its primary finding that the risk of harm is low and unlikely to attain a minimum level of severity.

Ground (6) - Taking into account and put weight on irrelevant, incorrect, inaccurate considerations or inferences and failure to give weight to those that relevant, correct, etc

26.  At the hearing, the Applicant was asked to give particulars of the irrelevant, incorrect and inaccurate considerations which the Board gave weight to and the relevant and correct consideration which the Board did not give weight to. She said she did not know. The Court is unable to consider this ground due to lack of particulars. The Court could not find any indication of such instances in its anxious scrutiny of the Board’s Decision.

Ground (7) - Failure to call for psychological and psychiatric reports

27.  The Applicant’s claim is not based on mental or psychological ill-treatment. At the hearing, she confirmed she had never asked to be so examined. There is no substance in this ground. This ground is clear evidence of the use of template grounds regardless of the actual circumstances of the case.

Ground (8) - Applying wrong standard of proof

28.  The Applicant could not give particulars as to where in its Decision the Board went wrong by applying the wrong standard of proof. Having examined the Decision with anxious scrutiny, this Court is unable to identify any such error.

Ground (9) - insufficient legal representation before the Director, no legal representation before the Board, no language assistance, late delivery of hearing bundle, BOR 2 Risk decided without a screening interview

29.  In Re Zafar Muazam[11], Re Zunariyah[12], Re Zahid Abbas[13], Re Tariq Farhan[14] and Re Lopchan Subash[15], the Court of Appeal held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar.[16] nor the judgment of FB v. Director of Immigration[17] prescribes that 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. The real question is whether the claimant is prejudiced for want of legal and language assistance.

30.  The Applicant had the benefit of legal representation in presenting her case to the Director. She now complains about insufficient legal representation before the Director. The complaint is a very serious one, but is lacking in particulars. She could not provide such particulars before the Court to make good her complaint. It is impossible for this Court to make a determination on her complaint. Insofar as this Court could ascertain from the documents before it, all the benefits that legal representation could have afforded her were contained in her written submissions, non-refoulement claim form and answers in the screening interview given under legal advice. All these had been presented to the Director, which were then presented to the Board. Despite she was not legally represented at the oral hearing before the Board, all the benefits which legal representation could have afforded her were before the Board. Taking a global view of the circumstances, nothing amiss arose from the non-availability of legal representation in the process before the Board. The Applicant suffered no prejudice due to lack of legal representation before the Board.

31.  At the hearing, the Applicant confirmed she had no complaint about lack of language assistance, late delivery of hearing bundle or that her BOR 2 Risk claim was decided without a screening interview.

Overall scrutiny of the Decision

32.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.

33.  The Board accepted most of the Applicant’s evidence. It accepted the general thrust of her case, the assaults, the threats and the demands, though not the allegation of forced sex, the issue of arrest warrants against her and her complaint at the city mayor’s office. It also found on the basis of the COI that adequate state protection is available to prevent or mitigate the risk if it turns out to be real. All these are finding of facts exclusively for the Board which the Court in a judicial review may not intervene save for errors of law, procedural unfairness and irrationality. Except for the less significant issues of fact, the Board actually assessed her claim on the essence and general thrust of her case. It was on the basis of these facts, that the Board further found the Applicant is not entitled as a matter of law to non-refoulement protection under any of the four applicable grounds. These are mixed finding of facts and of the law. Insofar as they are finding of fact, they are exclusively within the province of the Board. Insofar as they are finding of the law, they are absolutely correct. The Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.

Conclusion

34.  For the above reasons, leave is granted to amend the Form 86 and the Applicant’s application for leave to apply for judicial review is refused.

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