RE NG MAGIE VENTURA

CACV 321/2021

[2021] HKCA 1932

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 321 OF 2021

(ON APPEAL FROM HCAL 2692 OF 2018)

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J U D G M E N T

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Hon Lisa Wong J (giving the Judgment of the Court):

The appeal

1.  This is an appeal against the order made by Deputy High Court Judge To (“Judge”)  on 17 June 2021 (“Judge’s Decision”)  refusing leave to apply for judicial review.  The intended application for judicial review sought to quash the decision of the Torture Claims Appeal Board (“Board”)  given on 19 November 2018 (“Board’s Decision”), which dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”)  of her non-refoulement claim (“NRF Claim”)  by a notice of decision dated 27 February 2018 (“Director’s Decision”).

Basis and allegations in support of NRF Claim

2.  The basis of the NRF Claim made by the applicant, a national of the Philippines, is a fear of being harmed or even killed by her uncle (“Joel”)  and aunt, Joel’s wife.

3.  The circumstances giving rise to such alleged fear have been set out in paragraph 6 of the Director’s Decision; paragraphs 29 to 42 of the Board’s Decision and [6] to [8] of the Judge’s Decision embodied in the Form CALL-1 dated 17 June 2021, [2021] HKCFI 1738 (“Form CALL-1”).

4.  Briefly:

(1)  The applicant, abandoned by her parents, started to live with Joel and his wife since she was 11 years old.

(2)  Throughout the time when she stayed with them (from early 2004 to the end of 2014), Joel and his wife treated the applicant like a slave.  She was not provided with sufficient food.  Nor was she given any money.  She had to walk to school.  She did all the housework.  She would be punished if they thought she had done something wrong. The physical abuse had an adverse impact on the applicant’s mental condition.

(3)  In October 2010, the applicant gave birth to a daughter by her boyfriend out of the wedlock.  When the baby was 2 months old, she was taken away by her father whom the applicant could not contact again.  The applicant received the same bad treatment from Joel and his wife during her pregnancy.

(4)  On 13 February 2013, Joel (who was drunk and had taken drugs)  sexually assaulted her.  The applicant would have been raped if Joel’s wife had not appeared.  Joel warned the applicant that he would kill her if she told anyone about the incident.

(5)  The applicant did not leave because she would be homeless.  Nor did she report Joel to the police, which she believed would regard the matter as a family dispute.

(6)  Then, in July 2013, through another uncle who lived in Manila, the applicant became reunited with the father whom she had never met.  She told him about all the mistreatment that she had suffered at the hands of Joel and his wife, including Joel’s attempt to rape her. 

(7)  On her father’s advice and with his help, the applicant left the Philippines in December 2014 without notifying Joel or his wife.

(8)  She has not had any more contact with Joel or his wife since leaving the Philippines.

Overstaying in Hong Kong and lodgment of NRF Claim

5.  The applicant arrived in Hong Kong as a visitor on 23 December 2014.  She last had permission to stay until 25 June 2015 but she overstayed.  On 5 August 2015, she was arrested for overstaying.  She raised the NRF Claim by written submission dated 6 August 2015.

Director’s Decision

6.  After considering the information provided by the applicant in her Non-refoulement Claim Form dated 31 January 2018 and at the screening interview on 22 February 2018, the Director found the NRF Claim unsubstantiated under any of the applicable grounds for non-refoulement protection: torture risk[1], persecution risk[2], “BOR 2” risk[3] and “BOR 3” risk[4]. The Duty Lawyer Service (“DLS”)  represented the applicant before the Director.  The DLS ceased to act for the applicant after explaining the Director’s Decision to her.

Appeal to Board and Board’s Decision

7.  The applicant appealed to the Board.  The Board conducted a rehearing of the NRF Claim on 16 August 2018, at which the applicant was present to give evidence and to answer the Board’s questions with the assistance of a Tagalog/English interpreter.

8.  The appeal was dismissed.  The Board questioned the applicant’s credibility as it found many aspects of the applicant’s evidence at the hearing to be inherently implausible and/or inconsistent with the information that she had previously given.  In particular, the Board did not accept the applicant’s evidence about Joel and his wife’s alleged mistreatment and abuse (including the attempted rape).  Nor did the Board believe that she could not find employment in the Philippines and lead an independent life because she had not completed high school; that she would be compelled to resume living with Joel and his wife on her return to the Philippines; that she is still at any risk of harm from Joel and his wife if she is not residing with them; or that Joel and his wife would have any interest in her if she returns to the Philippines.  In short, the Board found that if the applicant does not resume living with Joel and his wife, she would not face any real risk of any of the proscribed harms from either of them should she return to the Philippines.

Application for leave for judicial review and Judge’s Decision

9.  By a Notice of Application for Leave to Apply for Judicial Review (“Form 86”)  issued under HCAL 2692/2018 on 27 November 2018 and an 11-page supporting affirmation filed on the same date, the applicant applied for judicial review of the Board’s Decision[5] on the following proposed grounds for relief (leaving out matters directed solely at the Director):

(1)  Lack of legal representation after the Director’s Decision;

(2)  Lack of language assistance in understanding the English documents included in the hearing bundle used at the Board hearing, otherwise preparing for the appeal to the Board, following what was happening at the appeal hearing or understanding the Board’s Decision to her so that she could properly appreciate the reasons for the rejection the NRF Claim;

(3)  Late delivery of the hearing bundle before the Board, leaving her insufficient time to prepare for the appeal hearing;

(4)  Speculation without ground that it was safe for the applicant to return to the Philippines by relying on sources of news that were not officially recognised or were simply hearsay and cases that were outdated; and

(5)  Lack of care in doubting her credibility.

10.  After a hearing in open court, the Judge refused leave for the reasons in [11] to [18] of the Form CALL-1 (footnotes excluded):

“11. As for her first complaint, she said that the majority of the documents in the appeal bundle were in English and without translation. She said that due to lack of understanding on what will happen in the hearing she was confused in terms of what was happening. In Re Zafar Muazam, Re Zunariyah, Re Zahid Abbas, Re Tariq Farhan, and Re Lopchan Subash, the Court of Appeal held that neither the high standard of fairness laid down in Sakthevel Prabakar v. Secretary for Security nor the judgment of FB v. Director of Immigration 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.

12. Similarly, a claimant does not have absolute right to free language assistance at all stages of the proceedings. In Re Karamjit Singh, the Court of Appeal adopted the rationale of the Court of First Instance that it could not have been the intention of any authority laying down the principle of a high standard of fairness that the principle would include provision of interpretation service at any time an applicant desired or required. It must be borne in mind that it was the Applicant’s choice to come to Hong Kong where the official languages are Chinese and English. In the circumstances, she has to live with or cope with her language disability. She cannot expect to have the luxury of any documents to be fully translated into her first language for her benefit. She has to find assistance herself from among her friends and her ethnic community. Indeed, the Applicant was able to file an adequately well written affirmation in English herself.

13. The Applicant had the benefit of legal representation by the Duty Lawyer Service and interpretation services of a qualified interpreter at the screening interview and in presenting her case to the Director. She also had the services of a qualified interpreter at the oral hearing before the Board. Though the appeal bundle is in English, it is basically made up of her non-refoulement claim form, the record of the screening interview and the decision of the Director in the Notice, including the COI. She admitted that she knew what were in the non-refoulement claim form and the record of the screening interview. The Notice of the Director was issued to her on 27 February 2018. It was not until 16 August 2018 that the oral hearing was held. The Notice is in English and, unfortunately, no translation was provided. She cannot expect these documents to be fully translated for her. She had in between the issue of the Notice and the oral hearing nearly six months to seek assistance from among her own circle. Indeed, she had access to interpretation services as reflected in her affirmation and notice of application for leave to apply for judicial review filed in connection with this application which were very well written in English. Also, she could have sought assistance from the interpreter at the oral hearing before the Board. It lies ill in her mouth to attempt to overturn the result of the hearing on this ground.

14. Her complaint about lack of translation of the Decision is frivolous. The Decision was made after an oral hearing during which she had the benefit of interpretation services. A translation of the Decision of the appeal which was already made could not change the Decision or the outcome of the appeal.

15. Taking a global view of the circumstances, nothing amiss arose from the non-availability of legal representation or interpretation in the process before the Board. Her complaint about lack of legal and language assistance is over-exaggerated.

16. As for her complaint about the COI being not officially recognized and made up of hearsay, it is incorrect. The COI relied on by the Director and the Board are all from credible and official sources, including Country Reports on Human Rights Practices for 2016 - Philippines published by the United States Department of State; The World Factbook, published by United States Central Intelligence Agency; Philippines: Domestic violence, including legislation, availability of state protection and support services for victims; and The Official Website of The Philippine Commission on Women Violence against Women. Other than a bald assertion of unreliability and hearsay, the Applicant provided no particulars as to what are untrue, not to mention her failure to provide any publication contradicting these COI. The Court considered this ground totally groundless.

17. As for the overall or general complaint about irrationality and unreasonableness in the Board’s finding, these grounds of complaint are against the finding of facts by the Board. The function of the court in judicial review is not to re-assess the non-refoulement claims afresh. The court will only scrutinise 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.

18.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the burden of proof and standard of proof, the law and key legal principles relating to the four applicable grounds under the USM; and observed a very high standard of fairness.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  It was on that basis that the Board found there was no factual basis to support the Applicant’s claims for non-refoulement protection under any of the four applicable grounds.  The Decision was utterly without fault.  The Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success.”

Appeal to Court of Appeal - grounds of appeal

11.  By the notice of appeal filed herein on 23 June 2021, the applicant appealed against the Judge’s decision on the following grounds:

(1)   “Ground 1”: It was procedurally unfair that the court and authorities did not exercise caution and diligence in handling her case as a self-represented litigant.

(2)   “Ground 2”: Notwithstanding her inability to read or write English, after the Director’s Decision, she had not been provided with any language or legal assistance, without which she could not fully understand the decisions that had been made against her, formulate proper grounds for judicial review or grounds of appeal or effectively appear at hearings, much to her disadvantage.  The Judge was unfair in failing to acknowledge or give weight to her language incapability.  The applicant requested for the translation and language assistance at the appeal hearing before the Court of Appeal.

Failure to lodge written submission & vacation of hearing

12.  In breach of paragraph 4(1)  of the directions given by the Registrar of Civil Appeals on 21 July 2021, the applicant failed to lodge skeleton submissions 28 days before the hearing of the appeal, despite having been warned in paragraph 6 that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance with such direction.

13.  The requirement for the lodgment of skeleton submissions in a civil appeal is prescribed by Practice Direction 4.1.  The filing and service of skeleton submissions by the parties are important for the preparation of an appeal, both for the court and the litigants.  Non-compliance substantially impairs the exercise of case management power of the presiding judge in an appeal, including the effective management of the oral hearing.  Nowadays, this court no longer permits unfocused oral presentation of material at a hearing.  In view of the heavy demand on the court’s time due to the large volume of appeals, in recent times this court has taken a firm stance on the requirement to lodge skeleton submissions.  Non-compliance is treated as the abandonment of the right to an oral hearing.

14.  The hearing date on 12 October 2021 was therefore vacated and the applicant was debarred from lodging any written submission.  We will deal with the appeal on paper on the basis of the materials already filed with the court.

Discussion

Court of First Instance’s role in judicial review in non-refoulement cases

15.  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 role of the court in judicial review is not to re-assess the non-refoulement claim.  The court will scrutinise 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 [2018] HKCA 524 at [14(1)].

Court of Appeal’s approach in appeal against refusal of leave for judicial review in non-refoulement claim

16.  An appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh. What the appellate court is concerned with is the decision of the judge at first instance which is considered in light of the grounds of appeal raised by the applicant.  In short, the Court of Appeal shall interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong.  See again Nupur Mst v Director of Immigration at [14(2)].

Ground 1

17.  Ground 1 is too vague to merit any or any serious consideration.  The applicant has not condescended to any particulars as to how she or her case has not been treated with caution or diligence.

Ground 2

18.  It does not follow from the application of high standards of fairness that a non-refoulement protection claimant is therefore absolutely entitled to legal representation at all stages of the screening process or the legal proceedings ensuing therefrom.  See Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37 and Re Ahmed Syed Rafiq [2018] HKCA 178.

19.  In this case, the applicant did already have the benefit of legal representation from the DLS in presenting her case to the Director.  Other than a general complaint, she has not pointed out in what ways she had been prejudiced before the Board or the Judge due to her being unrepresented.  And we can see none, particularly given the purely factual nature of the NRF Claim.

20.  As for interpretation services, they are provided at the hearings before the Director, the Board, the Judge and this court.  The Applicant did not highlight any particular aspect of such proceedings where the lack of interpretation service before/after these hearings hampered the presentation of her case.

21.  In any event, we have keenly scrutinised the Board’s Decision and the Judge’s Decision and are satisfied that they are in order.

Disposition

22.  For these reasons, we see no basis to interfere with the Judge’s Decision. Accordingly, we dismiss the appeal.