“MND” v. DEPARTMENT OF JUSTICE on behalf of IMMIGRATION DEPARTMENT

HCAL 125/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 125 OF 2013

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J U D G M E N T

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I. INTRODUCTION

1.  This is an application for leave to apply for judicial review filed on 20 August 2013 against the determination by the Director of Immigration (“DOI”) dated 5 July 2013 (“DOI Determination”) refusing the applicant’s claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”).

2.  By the DOI Determination, the DOI, having considered the applicant’s Torture Claim Form and the screening Interview, dismissed the applicant’s torture claim under section 37ZI(1)(b) of the Immigration Ordinance Cap 115 (“Ordinance”). By the DOI Determination, the DOI found that the alleged threat from “AA” and his people [1] against the applicant did not amount to “torture” as defined in section 37U(1) of the Ordinance, and further the DOI was not satisfied the applicant would be in danger of being subjected to any real risk of torture in the Philippines if she were to be returned there.  The DOI came to those findings on the assumption that what the applicant said to have happened was true.

3.  After the DOI Determination, on 17 July 2013 the applicant petitioned to the Chief Executive.  When she made the present application and her supporting affidavit (“Affidavit”) both on 20 August 2013, the decision by the adjudicator of the Torture Claims Appeal Board was still pending.

4.  On 11 October 2013, an adjudicator, having considered the matter on paper, dismissed the applicant’s petition and confirmed the DOI Determination (“Appeal Decision”).  In the written Appeal Decision, the adjudicator set out her reasons for dismissing the applicant’s petition. In essence, the adjudicator came to these conclusions.  First, the applicant had not satisfied or fulfilled the elements of the definition of “torture” in section 37U(1) of the Ordinance.  Secondly, the applicant had not shown there was any or any substantial grounds for believing that she would be subjected to torture if refouled. Thirdly, the applicant had not established that there was a foreseeable, real and personal risk of her being subjected to torture if she were refouled to the Philippines.

5.  In the present proceedings, the applicant, who was acting in person, did not apply to formally amend her application to seek leave to apply for judicial review against the Appeal Decision.  However, on 4 December 2013, she lodged with the court a copy of the Appeal Decision, and at the hearing on 18 December 2013 she also challenged the Appeal Decision by relying on the same grounds as for her attack on the DOI Determination.  In the circumstances, I shall treat her application as one for leave to apply for judicial review against the DOI Determination and/or the Appeal Decision.

II. GROUNDS

6.  In the Form 86 itself, the applicant did not set out any grounds for seeking relief.  But bearing in mind that the applicant was acting in person, I am prepared to treat what she said in the Affidavit as setting out her grounds for the application.

7.  In the Affidavit, the applicant said she was born in the Philippines in 1958.  In 1997, she entered Hong Kong with the permission of the DOI as a foreign domestic helper and remained in Hong Kong until 27 December 2002.  When she last came to Hong Kong on 27 February 2005,[2] she overstayed since 1 March 2005.  In the Affidavit, the applicant claimed she came to Hong Kong because she feared for her life due to problems with “opponent party members” in the Philippines in 2004.[3]  She lodged her torture claim with the DOI on 24 August 2009, and was released on recognizance on 2 September 2009. She submitted her Torture Claim Form on 18 March 2013, and had her screening Interview on 7 June 2013.

8.  In the Affidavit, the applicant basically repeated her story given to the DOI [4] with some differences.  She claimed she was born (and she grew up) in Loacan, Itogon, Benguet, Philippines, and completed high school in 1980.  Her problems concerned land disputes with the neighbouring “A” family over a piece of land near her home in respect of which the applicant’s mother (“Mother”) became the legal owner following a lawsuit (“Land”).  The “A” family claimed the Land belonged to them, and forcefully occupied the Land. The dispute turned for the worse when the “A” family started to threaten the applicant’s family members.  Members of the “A” family came to the applicant’s house and threatened the Mother, saying the Land belonged to them and no one could go to the Land.  The Mother got scared and reported to the village head, but the village head was unable to provide any assurance.  The applicant was worried about the lives of her family members. “Moreover, the [“A”] family members always behind [the applicant], they asking to [her] family members about [her] whereabouts. Life is too risky there”.  The applicant added that an “A” family relative named “AP” was formerly a mayor of Itogon, and she queried that “[AP] if not any political party, so how he win the mayor election?”  On such basis, the applicant felt it was a travesty of justice and contrary to natural law and the spirit of common humanity/brotherhood to refuse her torture claim and to deport her from Hong Kong.

III.  DISCUSSION

9.  In the exercise of its supervisory jurisdiction, the court in a judicial review is to examine whether the DOI and/or the adjudicator, in dismissing the torture claim or petition (as appropriate), made any error of law or handled the matter without compliance with the high standard of fairness as required by the law and as explained by the Court of Final Appeal in Secretary for Security v Prabaker. [5]

10.  In a leave application, the applicant must show that his/her intended grounds in support of the intended judicial review are reasonably arguable with a realistic prospect of success. [6]

11.  In my view, bearing in mind the high degree of scrutiny required, neither the DOI nor the adjudicator made any error in coming to the essential findings in their respective decisions.  I find they respectively had given sufficient reasons for coming to those findings, which reasons were rational and sound.

12.  To start off, the applicant in order to succeed in her torture claim had the burden of proving there were substantial grounds for believing that she would be in danger of being subjected to “torture” if repatriated to the Philippines.

13.  “Torture” is defined in section 37U(1) of the Ordinance as follows:

“torture (酷刑) means an act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person—

(a) for such purposes as—

(i) obtaining from that person or a third person information or a confession;

(ii) punishing that person for an act which that person or a third person has committed or is suspected of having committed; or

(iii) intimidating or coercing that person or a third person; or

(b) for any reason based on discrimination of any kind,

when such pain or suffering is inflicted by, or at the instigation of, or with the consent or acquiescence of, a public official or other person acting in an official capacity, excluding pain or suffering arising only from, inherent in or incidental to lawful sanctions”

14.  In the Torture Claim Form and screening Interview, the applicant claimed that the Mother became the legal owner of the Land following a lawsuit (and further claimed the Mother had documentary proof of her legal title).  The applicant said her parents transferred the ownership of the Land to her in late 2004, and after the legal process for transfer of the paper title to her (which she claimed was proved by a plan sketch) was completed, she left the Philippines and came to Hong Kong as a tourist on 9 December 2004.  Most of her other family members were in the Philippines.  Whilst on her sightseeing trip in Hong Kong, the neighbouring “A” family found out that ownership of the Land had been transferred to her.  The applicant claimed that one of the “A” family relatives “AP” was the mayor of Itogon, Benguet, but in the screening Interview the applicant said he was unemployed and did not belong to any political party.[7]  One of the “A” family members “AA” came to the applicant’s house and threatened the Mother, saying that if anyone of their family ever saw the applicant they would kill her.  The applicant said “AA” was unemployed, and she did not know whether he belonged to any political party.

15.  The applicant went on to say that when she was about to return to the Philippines, the Mother told her by telephone about the threat and asked her not to go back home, so to save herself the applicant stayed in Hong Kong and did not return since.  The applicant kept in contact with her family.  The Mother told her “AA” harassed her around once a week when he got drunk by shouting to her and repeating the threat.  The Mother would cry every time they talked so the applicant did not ask her much.  The applicant was not sure whether the Mother or other family members had called the police.  Recently in December 2012, the Mother told the applicant that during a village festival “AA” and his brothers asked her when the applicant would return home, and said their machetes were waiting for her.  The applicant asked the Mother to report to the village head (which the Mother eventually did), and the village head arranged a meeting between the Mother and “AA”.  “AA” denied harassing the Mother and said he was just asking when the applicant would return home.  The village head warned “AA” not to threaten the Mother when he got drunk, but “AA” still kept on harassing her by going to her house with a chopper and said they would use the chopper to hurt the applicant when she returned home.  The Mother was not hurt because they were outside the house.  The applicant claimed that the normal practice was to report the case to the village head and then to the police, but the Mother did not report to the police.  The applicant asked the Mother to call the police, but did not know whether she did so or not. “AA” did not hurt the applicant because she was in Hong Kong, but she did not think the police or authority could protect her if she returned home.  She believed that the neighouring family could always find ways to harm her if they wished.

16.  The DOI concluded that apart from verbal threats “AA” and his people had not inflicted any harm on the applicant, so they did not accept the applicant ever suffered any severe pain or suffering within the definition of “torture”.  The adjudicator noted that the applicant was at all material times in Hong Kong and was not personally harassed by “AA”.  The applicant only heard about the threats made indirectly through the Mother (even if it were accepted that such threats were made). The adjudicator said that the impact of a threat relayed from abroad must be weakened by time, distance, and the fact that it was not made directly.  In any event, although the Mother was harassed by “AA”, she was never physically harmed by him.  I agree with both the DOI and the adjudicator that the evidence adduced fell well below the circumstances found to be “torture” within the meaning of section 37U(1) of the Ordinance.

17.  The DOI also found that the applicant’s problems with “AA” and his people, if established, originated from a private land dispute with no indication of involvement of public officials or authorities of the Philippines.  It was only the applicant’s mere assertion that she did not think the police of the Philippines could protect her if she returned home.  But there was no evidence she or her family reported the matter to the police.  The police did not know of the applicant’s problem, and hence there was no evidence of acquiescence.  Further, there was no indication that “AA” and his people were connected with the Filipino authorities in the harm and threats made against the applicant, or that their threats were instigated by the Filipino government or any public official or authority.  There was also no evidence that the applicant had problems with or been arrested, detained or imprisoned in the Philippines.  The DOI found that since the land dispute was private in nature, the alleged threats or perceived risk of torture (even if established) did not come within the meaning of torture under the Ordinance.  The adjudicator also found that “AA” was not a public official working for the state, and there was no evidence that “AA” held and/or exercised any authority over others or had any authority comparable to governmental authority.

18.  In light of the definition of “torture”, I do not think that the decisions of the DOI and the adjudicator could be faulted as the applicant had not suggested that her problems had anything to do with the government or an official capacity in her country.  In the screening Interview, the applicant said she did not know whether “AA” belonged to any political party. Even though the applicant queried how “AP” could have become the mayor of Itogon if he did not have the backing of a political party, there was no positive evidence that he belonged to any political party.  Indeed, the applicant stated at the screening Interview that “AP” did not belong to any political party.  But more significantly, there was no evidence that “AP” was involved in any harm or threat to the applicant or the Mother at all.  The applicant’s mere reference to “opponent party members” in the Affidavit did not bring the matter further as she did not even identify the relevant political party.

19.  In the DOI Determination, the DOI found that even if the applicant’s claim were credible, based on the assessment in paragraph 17 above and the following grounds, it was not accepted that she would be subjected to any real risk of torture if she were returned to the Philippines:

(a) There was no evidence to show that the police or the Filipino government was or would be unwilling to exercise their power to provide reasonable protection to the applicant as they would do to other citizens of the Philippines. It was thus not accepted that the applicant would be unable to obtain police assistance or protection upon return to the Philippines.

(b) The applicant provided an affidavit of complaint by her cousin “JJOC” dated 29 March 2013 (“Complaint”). “JJOC” complained that some armed malefactors harassed him and came looking for the applicant. But the DOI found that without reporting the threats made by “AA” and his people to the police, it was mere speculation that the police would not help her. The 2012 Human Rights Report issued by the US Department of State (“Report”) indicated that the Filipino government did take action to protect the rights of her citizens. It was considered that reasonable protection would be readily available to the applicant against the life threat and risk of harm from “AA” and his people (even if it were true and still existed) in the circumstances upon her return to the Philippines.

(c) Any risk of threats from “AA” and his people (if established) was localised and thus avoidable if the applicant moved to another place other than her hometown upon her return to the Philippines. According to the Report, the constitution of the Philippines provides for freedom of movement within the country, foreign travel, emigration and repatriation, and the government generally respected these rights in practice. Being an able-bodied 55-year old person with years of overseas working experience, it was not considered unduly harsh for the applicant to relocate to an area other than her hometown to avoid any real risk of torture, even if it were true, upon her return to the Philippines.

20.  In the Appeal Decision, as to whether there were any substantial grounds to suggest a real risk of torture, the adjudicator noted the applicant had not adduced any evidence that a consistent pattern of gross, flagrant or mass violation of human rights existed in the Philippines.  As to the applicant’s personal circumstances, the adjudicator noted that the plan sketch, which was compiled by non-government engineers for the applicant and which bore the words “This plan shall not be used for land registration”, showed it was not and could not be used as evidence of the registration of the applicant’s paper title to the Land.  Hence, the applicant had not substantiated her allegation of ownership of the Land.  The adjudicator found she could not place much weight on the Complaint since the underlying account therein of the Land being given to the applicant by her deceased grandfather when she was 15 years old (ie around 1973) was not that upon which the applicant now relied.  There was also no support that a minor could hold land in the Philippines.  The assertion that “AA” and his people had adverse interest in the applicant was therefore supposition rather than evidence.  The adjudicator found there was no or no sufficiently reliable evidence that the applicant would be personally at risk of being subjected to torture (as understood under CAT) in the Philippines.

21.  In my view, there was no hint or suggestion of acquiescence by the Filipino government or anyone in an official capacity to the conduct of those against whom the applicant complained.  There was also nothing to suggest that the conduct of the Filipino government in treating its citizens would lend credence to her claim.  I am not persuaded that the decisions of the DOI and the adjudicator in this respect would be reviewable under any public law ground.  Although the adjudicator did not rely on the internal relocation ground found by the DOI, I note the DOI in coming to the view that there was nothing to show the applicant would be subject to any risk of torture or that she would not be able to make a living elsewhere away from her hometown had considered the present conditions of the Philippines (ie the receiving country).   In the circumstances, I  am satisfied there was nothing before me that could arguably suggest that the internal relocation ground in the DOI Determination would be challengeable under the intended judicial review.

22.  Although the applicant did not take issue over the absence of an oral hearing before the adjudicator, bearing in mind the high degree of scrutiny required, I proceed to consider whether there was any procedural unfairness.  The relevant legal principles were discussed in the judgment of Au J in ST v Betty Kwan & Anor. [8]  In a nutshell, there is no absolute right to an oral hearing and there is no systemic procedural unfairness in the practice of adjudicators in disposing of selected petitions on the papers even though they do not inform the petitioner that they have decided to do so and even though they do not provide their reasons for this decision before they determine the petition on the papers.

23.  As pointed out by the adjudicator in the present case, the petition did not raise any credibility issue nor was there any new evidence placed before her.  There was no suggestion of breach of any procedural requirement at the first tier consideration of the applicant’s torture claim by the DOI.  This case is a simple and straightforward one.  On the facts and circumstances of the petition, even bearing in mind the interest at stake, I do not think the absence of an oral hearing prejudiced the applicant’s claim or the adjudicator failed to adopt a high standard of fairness as required by Prabakar.

24.  Having reminded myself that the court in judicial review is only to look at the legality of the underlying decision but not its merits, I am not persuaded that the applicant has provided any recognised grounds of judicial review against the DOI Determination or the Appeal Decision.  In the circumstances, the leave application cannot succeed.  I therefore dismiss this application.

25.  For the purpose of this judgment, I have anonymised the identities of the applicant and the relevant parties.