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HCAL389/2018
[2018] HKCFI 2766
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 389 of 2018
BETWEEN
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Moreno Imelda Sagun |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative Respondent |
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and |
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Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s Decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge Josiah Lam:
Leave to apply for judicial review be refused.
Observations for the Applicant
Background
1. The Applicant is a national of the Philippines. She is now aged 45 (DOB: 11 March 1973).
2. The Applicant claimed she would be harmed or killed by her abusive husband Lopez and the people of a drugs syndicate.
3. The Applicant said she married Lopez in 1996. Even before marriage, she had been subjected to violence from Lopez. Lopez abused her almost daily until the Applicant left him in November 2005.
4. The Applicant claimed Lopez started to sell drugs in 1996. He was also a heavy gambler. From 2000, Lopez took money from the Applicant’s shop. When the Applicant stopped him, he assaulted her. On one occasion in 2002, Lopez tried to set fire inside the house. The Applicant stopped him. He assaulted her.
5. One day in 2003, Lopez lost money in gambling again. He snatched the Applicant’s jewellery. The Applicant was injured in the struggle.
6. In 2004, some people of a drugs syndicate came to look for Lopez. They said Lopez had not settled with them the proceeds of drugs. The Applicant told them she did not know where Lopez was. The men then caused some damage in the house and left. They often came to look for Lopez but never harmed the Applicant.
7. In November 2005, the Applicant left Lopez. She took her children to live with her mother and stayed there until January 2006. Then she went to Manila to apply for a domestic helper job in Hong Kong.
8. The Applicant’s first employment contract here was terminated in April 2007. She returned to the Philippines and stayed there for two years in such places that Lopez could not find her. The Applicant had not seen Lopez since November 2005 but she claimed Lopez continued to harass her mother saying he would kill the Applicant if he found her. The Applicant also learnt from her children in June 2015 that Lopez had threatened to kill her.
9. Between 2006 and mid-2015, the Applicant secured a total of six domestic helper contracts in Hong Kong. For the first four contracts, she returned to the Philippines each time after ceasing employment then.
10. The Applicant last entered Hong Kong from Macau on 14 June 2015 to work as domestic helper here. This employment contract was terminated prematurely on 12 November 2015. The Applicant did not leave Hong Kong accordingly. She overstayed from 27 November 2015. A month later on 28 December 2015, she surrendered to the Immigration Department and raised a non-refoulement claim subsequently.
11. In the ensuing two-tier screening process here, the Director of Immigration (“the Director”) and the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”) respectively refused the Applicant’s claim with respect to all the four applicable grounds: (i) risk of torture,[1] (ii) risk of persecution,[2] (iii) risk of torture or cruel, inhuman or degrading treatment or punishment (BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4].
12. On 12 March 2018, the Applicant applied for leave for judicial review.
Timeline
13. Things happened in this order: –
| Oct 2006 |
The Applicant came to Hong Kong to work as domestic helper. Between 2006 and mid-2015, she secured a total of six domestic helper contracts here. For the first four contracts, she returned to the Philippines each time after ceasing employment then. |
| 2015-6-14 |
The Applicant last entered Hong Kong from Macau. Her employment contract was terminated prematurely on 12 November 2015. |
| 2015-11-27 |
The Applicant began overstaying in Hong Kong. |
| 2015-12-28 |
The Applicant surrendered to the Immigration Department. |
| 2015-12-29 |
The Applicant submitted a written representation to the Immigration Department. |
| Jun 2016 |
The Applicant lodged a non-refoulement claim. |
| 2017-5-18 |
The Director refused the Applicant's claim with respect to all the four applicable grounds:torture risk, persecution risk, BOR2 risk and BOR3 risk. [“the Director's decision”] |
| 2018-1-8 |
The Applicant appeared before the Board for appeal. |
| 2018-3-5 |
The Board refused the Applicant's appeal with respect to all the four applicable grounds. [“the Board’s decision”] |
| 2018-3-12 |
The Applicant applied for leave for judicial review. |
Respondent/Interested party
14. The Unified Screening Mechanism is a two-tier process. The Director screens an applicant’s non-refoulement claim first; the applicant may appeal to the Board which deals with his/her complaint on a rehearing basis.
15. In Re Moshsin Ali, the Court of Appeal states that “the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”[5]
16. In Form 86, the Applicant named the Board as respondent and the Director as interested party. The Board is the putative respondent; the Director is the putative interested party.
The Director's decision
17. In his decision dated 18 May 2017, the Director did not accept the Applicant faced any real torture risk, persecution risk, BOR2 risk or BOR3 risk. He also found reasonable state protection and internal relocation were available to the Applicant in any event. The Director refused the Applicant’s non-refoulement claim with respect to all the four applicable grounds.
The Board’s decision
18. The Applicant appealed to the Board. The Adjudicator interviewed the Applicant on 8 January 2018.
19. The Applicant told the Adjudicator that she was also involved in the illegal drugs trade and acted as a middle person between the drugs syndicate and Lopez. She said the drugs syndicate threatened her to pay back the drugs money or they would kill her and her family. The Adjudicator pointed out to the Applicant that it was not her case before. The Applicant explained she had not mentioned her own involvement previously because she was scared. The Adjudicator did not believe the Applicant’s explanation for her changed version, which was significantly inconsistent with the one she had given to the Director. The Adjudicator noted the Applicant had not mentioned any fear of the drugs syndicate in her early written representation (dated 6 June 2016). He did not believe the Applicant’s alleged fear of the drugs syndicate.[6]
20. On the other hand, the Adjudicator was prepared to accept the Applicant had faced domestic abuse from Lopez. However, the Applicant had already left Lopez for more than 12 years since November 2005. She had gone back to the Philippines a few times after her previous employment contracts ended in Hong Kong. She had even stayed in the Philippines for two years between April 2007 and April 2009. Lopez did not contact her during those times.[7] The Adjudicator was not satisfied the domestic abuse was of such severity and intensity that would force the Applicant to leave the Philippines for the sake of her life. He found the Applicant came to Hong Kong in order to work as domestic helper.
21. The Adjudicator found the Applicant failed to establish any real risk that warranted non-refoulement protection. On 5 March 2018, he refused the Applicant’s claim with respect to all the four applicable grounds: torture risk, persecution risk, BOR2 risk and BOR3 risk.
Grounds of judicial review
22. In Form 86 and her affirmation, the Applicant complained the Adjudicator unlawfully fettered his discretion; acted in a procedurally unfair manner; rendered unreasonable or irrational decisions; failed to meet the greater care and duty owed to a self-represented claimant.
23. The Applicant complained she was given the appeal bundle only a few days before the Board hearing. As such, she did not have sufficient time to prepare for the appeal due to language problem and lack of legal representation. The Applicant said she was confused. She complained the Adjudicator failed to make appropriate arrangement.
24. The Applicant further complained the Adjudicator relied on outdated cases or information not officially recognised or simply hearsay.
Court hearing
25. The hearing took place on 13 July 2018. The Applicant was in person. A Tagalog interpreter provided service in court.
26. The Applicant confirmed all the grounds of judicial review were in the documents. She had nothing to add to those grounds.
27. The Applicant also confirmed she had submitted all of her case to the Director and the Adjudicator for their consideration of her non-refoulement claim.
Discussion
28. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
29. 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’.[8] 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.” [9]
30. The Applicant complained she received the appeal bundle only on or about 2 January 2018 before the Board hearing scheduled for 8 January 2018.
31. According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’[10] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[11], the Director shall send copies of the hearing bundle to the Board and to the Applicant no later than 5 working days prior to the date of the hearing.
32. The Applicant received the appeal bundle 6 calendar days (or 5 working days) prior to the Board hearing. Thus, the bundle was served on the Applicant in time.
33. The appeal bundle would consist mostly of documents that had been seen or submitted by the Applicant during the first-tier screening of her claim. The Applicant's case was not difficult and there was no evidence to suggest the bundle was voluminous or difficult.
34. A few days were certainly not a long period but could still be sufficient for reasonable and diligent preparation on the part of the Applicant. The Applicant failed to show she really needed more time to prepare for the appeal. There was no evidence to show the Applicant had so complained to the Adjudicator or asked for adjournment during the appeal hearing.
35. The Applicant said in her affirmation that she answered all the questions honestly.[12] That would mean she knew well what was being asked and she answered at will. She was not confused.
36. The Applicant mentioned she was not given sufficient legal assistance. She had been represented by the Duty Lawyer Service up to the Director’s decision dated 18 May 2017.
37. The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings.[13] The Applicant failed to show this court how her case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.
38. In the present application, the Applicant had Form 86 and her affirmation prepared in English. Apparently, the Applicant could find someone to assist her with interpretation/translation and dealing with English documents at all material times. Furthermore, the Applicant was assisted by qualified interpreters when she was still represented by the Duty Lawyer Service and also in the screening process before the Director and the Adjudicator. The Applicant had much exaggerated her language problem.
39. The Applicant complained the Adjudicator had on outdated cases or information not officially recognised or simply hearsay. There was no evidence of that. The Applicant also failed to point out the specifics.
40. 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. He 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’s report showed that he 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. None of the Applicant’s complaints is substantiated.
Conclusion
41. The Applicant's complaints are not reasonably arguable. She has no realistic prospects of success in the sought judicial review. I therefore refuse to grant her leave for the review.
Dated 19th day of December 2018
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(Alan Ngan)
for Registrar, High Court |
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
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Notes for the Applicant:
If leave has been granted, the Applicant or his solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant on 19/12/2018
Moreno Imelda Sagun
Applicant’s ref. no:
Nil.
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 19/12/2018
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 7304/17/5/310/F377
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 705/17 (formerly RBCZ 12120/16)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] As defined in Part VIIC of the Immigration Ordinance, Cap 115, which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
[2] By reference to the non-refoulement principle under Articles 33 and 1A(2) of the 1951 Convention relating to the Status of Refugees.
[3] Under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] Under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[5] CACV 54/2018, para 45.
[6] The Board's decision, paras 41-46.
[7] Ibid., paras 39-40.
[8] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[9] CACV 219/2018 [2018] HKCA 570, para 14(1).
[10] The ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’ was issued by the Chairperson of the Board pursuant to section 16 of Schedule 1A to the Immigration Ordinance, Cap. 115 of the Laws of Hong Kong.
[11] The ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’ was issued by the Chairperson of the Board, who had been in her personal capacity delegated by the Chief Executive with the authority under Article 48(13) of the Basic Law of the Hong Kong Special Administrative Region to determine the practice and procedure of the Administrative Non-refoulement Claims Petition Scheme.
[12] The Applicant's affirmation, Point 8 on page 4.
[13] CACV 284/2017 Re Paswan Shibu Lal, para 21.
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