RE DE GUZMAN GENNELYN DELA CRUZ

CACV 179/2019

[2019] HKCA 1165

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 179 OF 2019

(ON APPEAL FROM HCAL 668 OF 2018)

_______________

_______________

___________________________________

REASONS FOR JUDGMENT

___________________________________

Hon Wong J (giving the reasons for judgment of the court):

The appeal

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Josiah Lam (“the Judge”) given on 4 March 2019[1] refusing her leave to apply for judicial review.  The intended judicial review is against the decision of the Torture Claims Appeal Board / Non‑Refoulement Claims Petition Office (“the Board”) dated 12 April 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 10 August 2017 rejecting her non-refoulement claim.

2.  The appeal was originally set down for hearing on 5 August 2019 but the hearing was not proceeded with as the interpreter was not able to come.  As the applicant indicated that she required interpretation service, the hearing was adjourned to a date to be fixed.  The appeal was then set down for hearing on 14 October 2019.  The applicant did not turn up at this hearing and we proceeded to consider and decide the case on papers.  The applicant did not file anything further during the period of adjournment.  Having considered all the matters provided by the applicant, we dismissed her appeal.  This is the reason for our decision.

The applicant

3.  The applicant is a Filipino national now aged 34.  She first came to Hong Kong on 20 June 2014 to work as a domestic helper on a two-year contract term.  Her employment was terminated prematurely and she returned to the Philippines on 5 December 2014.  She came to Hong Kong again on 4 February 2015 for her second employment as a domestic helper.  Again, her contract was terminated prematurely on 30 June 2015.  She had to leave Hong Kong on or before 14 July 2015 but she chose to overstay.  On 24 July 2015, she surrendered to the Immigration Department.  On 17 December 2015, she lodged a non‑refoulement claim.

The non-refoulement claim

4.  The applicant’s background and the details of her claim were set out in paragraphs 6 ‑ 9 of the Director’s Notice of Decision dated 10 August 2017 and paragraphs 1 ‑ 3 and 6 of the Board’s decision dated 12 April 2018, and were summarized in paragraphs 1 ‑ 10 by the Judge in the Form CALL-1 dated 4 March 2019.

5.  In a nutshell, the applicant’s claim was based on her fear that, if she were to return to the Philippines, she would be harmed or killed by her husband.  They married in 2007 and have two children.  The husband was an alcoholic and often abused her.  He had hurt her and nearly killed her.  She left her husband in June 2014 and came to Hong Kong.  When she was here, she started a relationship with an Indian man.  When she returned to the Philippines in December 2014, her husband found her despite she did not go home.  He also found out the extra-marital relationship of the applicant and threatened to kill her if she was to go to Hong Kong again.  She did come for another employment.  She stopped seeing the Indian man but started another relationship with a Pakistani man.  Her husband kept on sending her threatening messages.  She therefore dared not return to the Philippines.

The decisions of the Director / the Board

6.  Having considered the case under the unified screening mechanism (“USM”), by a Notice of Decision dated 10 August 2017, the Director rejected the applicant’s claim on all applicable grounds namely, torture risk[2], CIDTP / BOR 3 risk[3], BOR 2 risk[4] and persecution risk[5]. The applicant appealed to the Board and a hearing was held on 5 March 2018.  By its decision dated 12 April 2018, the Board dismissed the appeal and affirmed the Director’s decision.

The decision of the Judge

7.  The applicant filed a Form 86 on 18 April 2018 seeking leave to judicially review the Board’s decision. In the supporting affirmation filed on the same day, she set out her proposed grounds for judicial review as follows:

(1)  The Board failed to consider the issues of state protection and state acquiescence (quoting the obligation of state to adopt reforms on means of redress aimed at ensuring the safety of its citizens as stated in the UN Committee’s General Comment).

(2)  Procedural impropriety of the Board in that it failed to conduct sufficient and independent inquiry of the country‑of‑origin information (“COI”), in particular:

(a)  it failed to conduct critical analysis of the relevant COI;

(b)  it failed to provide adequate reasons as to why certain COI was preferred over the others;

(c)  it cherry-picked COI information; and

(d)  it failed to give reasons for assessment of lack of BOR 3 risk and / or there was insufficient basis to support conclusion of the lack of BOR 3 risk.

(3)  The Board failed to consider her psychological strain arising from the threats by her husband.

8.  At the applicant’s request, an oral hearing was conducted on 21 August 2018 to hear her leave application.  However, she was absent on the day of the hearing without explanation.  Therefore, the Judge proceeded to consider her application on papers.

9.  The Judge, having considered her proposed grounds for judicial review, concluded that they were not arguable and had no prospect of success, and refused to grant her leave to apply for judicial review.  The Judge gave the following reasons for his decision[6]:

“24. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

25. 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’. 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.’

26. As said in paragraph 16 above, I shall deal with the Applicant's application for leave for judicial review in relation to the Board's decision only as the Director's decision had gone on appeal to the Board for rehearing.

27. The Applicant complained the Adjudicator failed to give sufficient reasons for his decision on BOR3 risk. That was not true. The Adjudicator gave clear and sufficient reasons for his determination of the Applicant's claim with respect to all the four applicable grounds including BOR3 risk. The instant case was a clear one that the Applicant did not pass the high‑threshold test required for BOR3 risk.

28. The Adjudicator found the Applicant had not been inflicted with ill-treatment by Warren [the applicant’s husband] to the minimum level of severity. That meant she had not got any severe suffering (physical or mental). It was not correct for the Applicant to say the Adjudicator failed to consider her psychological strain. He did and he was not satisfied the Applicant had any severe suffering.

29. The Applicant had not made any complaint to the Philippines authorities. There was no evidence to show the authorities knew of her alleged predicament. Thus, there was no question of state acquiescence of any kind.

30. The Adjudicator had considered relevant COI. There was no evidence that he failed to conduct sufficient and independent inquiry or critical analysis. The Adjudicator need not state the mental process of his evaluating COI. He found reasonable state protection and internal relocation were available to the Applicant in any event. Such decision was not Wednesbury unreasonable in the circumstance.

31. There was no evidence the Adjudicator cherry-picked information.

32. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding, conclusion and decision which were not Wednesbury unreasonable. He 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. He 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.

Conclusion

33.  The Applicant's complaints are not reasonably arguable. She has no realistic prospect of success in the sought judicial review. I therefore refuse to grant her leave for judicial review.”

Grounds of appeal

10.  The applicant filed the Notice of Appeal dated 15 April 2019 to appeal the Judge’s decision.  She stated her grounds of appeal as follows:

(1)  The Judge made an error of law / misdirection in law in failing to take into account the psychological strain she had suffered from repeated threats by her enemies [her husband].

(2)  There was procedural impropriety in that the Judge failed to consider the concept of extended state acquiescence as expounded in TK vs Jenkins[7].

(3)  There was irrationality in that there was a failure to give reasons for the assessment of lack of BOR 3 risk and / or insufficient basis to support the conclusion of lack of BOR 3 risk.

(4)  The Judge erred or misdirected in law in failing to realize her fear that her enemies [her husband] was / is still looking for her to kill and would harm her if she were to return to the Philippines because she has relationship with different men in Hong Kong.

11.  In her written submission dated 4 July 2019, the applicant reiterating her complaints.  She stressed that her claim does not based on a personal or private dispute.  She has to flee for safety of her life as a group of murderers will hunt her wherever she is to hide in the Philippines.

Discussion

12.  This Court has repeatedly emphasised that judicial review does not operate as a rehearing of the non-refoulement claim.  Evaluation of the claim and evidence and assessment of its merits is a matter for the Director and the Board, who are the primary decision makers.  The Court in a judicial review exercises a supervisory role and its focus is on the legality and rationality of the decisions challenged and the propriety and fairness of the process by which the decisions were made.  It does not provide a further avenue of appeal.  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.  The court will not interfere with the findings of the Board unless they are reversible on public law grounds.

13.  An appeal against the refusal of leave to judicial review by a judge in the Court of First Instance is not an occasion for regurgitating arguments advanced and rejected by the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and his decision would not be reversed unless the applicant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.  It is not the role of this Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.[8]

14.  In the present case, the applicant complained that the Judge failed to take into account her psychological strain.  This complaint has no merit as the Judge clearly did take the matter into account and agreed that the Board was justified in not satisfying that the applicant had any severe suffering (physical or mental).[9]  There is no fault in the consideration and decision of the Judge.

15.  As regards the ground of failure to consider the concept of extended state acquiescence, it is noted that it was the conclusion of the Judge that the finding of the Board that “reasonable state protection … available to the Applicant” was not Wednesbury unreasonable in the circumstances”[10] and “there was no question of state acquiescence of any kind”[11].  This must be read in the context that the Board had made an assessment on state acquiescence by reference to relevant COI, noting contrary information in different papers.[12]  Extended form of State acquiescence is in the nature of a failure of the State to discharge normal State functions of providing security to its citizens either generally or in a particular location or of a particular class, or a particular religion etc.[13] We cannot agree that the Judge had failed to consider the concept of extended state acquiesce.  Nor do we find any fault in his decision.

16.  As regards the ground in relation to the BOR 3 risk, we are also of the view that there is no merit in it.  It relates to the risk of torture or cruel, inhuman or degrading treatment or punishment.  It is for the claimant to establish that the ill-treatment (physical and / or mental) he / she would face if expelled attains a minimum level of severity and that he / she faces a genuine and substantial risk of being subjected to such ill-treatment.  A very high threshold is required.[14] The Judge found that the case “was a clear one that the Applicant did not pass the high‑threashold test required for BOR3 risk”.[15]  He agreed with the conclusion of the Board and was of the view that the Board had given clear and sufficient reasons for his determination.  There is no reason for us to disturb this finding of the Judge.  We do not agree that he failed to give reasons for his finding in this aspect.

17.  Assessment of evidence, COI materials, risk of harm, state protection and viability of internal relocation (it is not a concern of this appeal, the Board had found it viable) 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.

18.  As regards the ground in relation to the court’s failure to recognise her fear, again there is no merit as obviously the Judge realised this was the primary basis of the applicant’s claim and considered her case bearing this firmly in mind.

19.  In any event, we have considered the Board’s decision and we agree with the Judge’s observations that the applicant’s case is not reasonably arguable, there is no realistic prospect of success and leave to apply for judicial review should not be granted.  We cannot discern any mistake in the decision made by the Judge.

Disposition

20.  For the reasons set out above, we concluded that there is no merit in the appeal. Accordingly, we had dismissed the appeal.

[1] Date of the Form CALL-1.

[2] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115, Laws of Hong Kong.

[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, section 8 of the Hong Kong Bill of Rights Ordinance (“BOR Ordinance”), Cap 383, Laws of Hong Kong.

[4] This refers to the risk of violation of the right of life under Article 2 of the Hong Kong Bill of Rights, section 8 of the BOR Ordinance.

[5] This refers to the risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees.

[6] Paragraphs 24 ‑ 33 of the Form CALL-1 dated 4 March 2019, [2019] HKCFI 871.

[7] HCAL126/2010, paragraph 62 of the judgment.

[8] Re: Salwant Singh, CACV 164/2019, paragraph 14(3).

[9] Paragraph 28 in the Judge’s Observations for the Applicant in the Form CALL-1, paragraph 19 is also relevant.

[10] Paragraph 30 in the Judge’s Observation for the Applicant in the Form CALL-1.

[11] Paragraph 29 in the Judge’s Observations for the Applicant in the Form CALL-1.

[12] Paragraph 47 in the Decision of the Board.

[13] See AM v Director of Immigration, [2014] HKC 416.  Paragraphs 61 ‑ 67.

[14] See Ubamaka v Secretary for Security, [2013] 2 HKC 75, paragraph 172.

[15] See paragraph 27 in the Judge’s Observations for the Applicant in the CALL-1 form.