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CACV 401/2021
[2021] HKCA 1837
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 401 OF 2021
(ON APPEAL FROM HCAL 649 OF 2019)
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| RE |
MANLIGAS WILMA MOTIN |
Applicant |
________________________
Before: Hon Barma JA and Lisa Wong J in Court
Date of Hearing: 22 November 2021
Date of Judgment: 6 December 2021
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JUDGMENT
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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 P Li (“Judge”) on 10 August 2021 (“Judge’s Decision”) refusing to grant leave for judicial review. The intended application for judicial review sought to quash the decision of the Torture Claims Appeal Board (“Board”) given on 1 March 2019 (“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 20 September 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 killed by a loan shark named Victor (“Creditor”) and his associates for failing to repay a loan of 3.5 million pesos (“Loan”).
3. The circumstances allegedly giving rise to such fear have been set out in detail in paragraph 6 of the Director’s Decision and in gist in paragraphs 6 and 7 of the Board’s Decision and [7] to [17] of the Judge’s Decision embodied in the Form CALL-1 [2021] HKCFI 2320 (“Form CALL-1”).
4. Briefly:
(1) In 2015, the applicant and her brother (“Brother”) took out the Loan, at 10% monthly interest and to be repaid within 5 years, to open a cosmetic shop in Manila.
(2) They defaulted in repayment since January 2017 after the shop was burnt down.
(3) The applicant was herself involved in 2 altercations with the Creditor and his men.
(4) In the “1st Incident” in March 2017, the Creditor and his men injured Brother in his leg. When the applicant confronted him, the Creditor threatened to rape and kill her if the Loan was not repaid within 2 weeks. The applicant sought help from the police but was advised that it was a personal matter and she should settle with the Creditor herself.
(5) In the “2nd Incident” in April 2017, the Creditor and his men went to the applicant’s house where he indecently assaulted her and his men assaulted Brother and his wife. The Creditor further threatened to kill them all if the Loan was not repaid. Upon the applicant’s complaint this time, the police took a statement from her and agreed to investigate.
(6) After the 2nd Incident, the applicant and Brother separately fled their hometown Laguna and hid at different places. The applicant did not know where Brother and his family went but she stayed at an employment agency in Manila until the issue of her Hong Kong working visa. The Creditor did not locate her.
(7) On 30 April 2017, the applicant left the Philippines.
Overstaying in Hong Kong and lodgment of NRF Claim
5. The applicant last arrived in Hong Kong on 30 April 2017. Her employment as a foreign domestic helper was terminated prematurely on 16 November 2017. Instead of leaving within 14 days, she overstayed since 1 December 2017. She surrendered to the Immigration Department on 19 December 2017. She raised the NRF Claim by undated written submission that was received on 25 January 2018 and completed a Non-Refoulement Claim Form dated 30 August 2018 (“NCF”).
6. After considering the information provided by the applicant in the NCF and at the screening interview on 18 September 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].
(1) First, the risk of future harm from the Creditor was low. The past ill-treatments did not attain a minimum level of severity. And the applicant had received no further threats or approaches from the Creditor or his men after she left Laguna. In fact, her stay at the employment agency in Manila was uneventful. There is no evidence to suggest that the Creditor and his men intended to, or were so influential that they would or could, locate the applicant anywhere in the Philippines.
(2) Second, the availability of reasonable state protection would lower or even negate the risk (if any). Despite her belief that the police would treat her problem with the Creditor as a private matter and would therefore not interfere, they did agree to investigate into the 2nd Incident. There is objective country of origin information (COI) showing that the Philippines government has taken practical steps, with positive results, to improve institutional effectiveness and to monitor the conduct of the local police. There are also channels for complaints against police misconduct. It was the applicant herself who fled at the first instance and did not follow up on the police investigation in Laguna.
(3) Third, the perceived risk, being localised in Laguna, can be reduced by internal relocation within a large populous country such as the Philippines. The applicant, an able-bodied adult with over 15 years of local and overseas working experience, would suffer little or no hardship in moving to say Quezon or Caloocan.
Appeal to Board and Board’s Decision
7. The applicant appealed against the Director’s Decision to the Board. The Board conducted a rehearing of the NRF Claim on 31 December 2018, which the applicant attended to give evidence and answer the Board’s questions through an interpreter.
8. The Board dismissed the appeal on all 4 applicable grounds for non-refoulement protection. The Board found material inconsistencies in the applicant’s evidence which undermined her credibility. For instance, at the hearing before the Board, she (1) alleged that the Creditor had in fact indecently assaulted her but did not make any verbal threats in the 1st Incident and (2) clarified that she was not indecently assaulted and that the Creditor and his men did not make any verbal threats in the 2nd Incident.
9. The Board reached the same conclusion as the Director regarding the availability of state protection, whereas the issue of internal relocation did not arise.
Application for leave for judicial review and Judge’s Decision
10. By a Notice of Application for Leave to Apply for Judicial Review (“Form 86”) issued under HCAL 649/2019 on 7 March 2019, the applicant applied for judicial review of the Board’s Decision on the ground of the Board’s alleged breach of procedural fairness by (1) unlawfully fettering its discretion; (2) acting in a procedurally unfair manner; (3) unreasonably or irrationally refusing the applicant’s appeal; and (4) failing to meet the greater care and duty owed to an unrepresented applicant.
11. The supporting affirmation of the same date added the complaints (1) that the applicant was not given the opportunity to “keep forward” her submission in an oral hearing as the hearing bundle was served late; (2) that she was not invited to make written submission; and (3) that the Board had made the groundless speculation that it was safe for her to return to the Philippines by relying on non-officially recognised or hearsay news and outdated cases.
12. The applicant appeared before the Judge at the hearing on 8 June 2021. The Judge dismissed the application for leave for judicial review for the reasons set out in [21] to [27] of the Form CALL-1:
“21. The applicant filed an application for leave for judicial review on 7/3/2019. In the Form 86 and her affirmation, she alleged that there was no hearing before the TCAB. She was not even invited to file written submissions. The appeal bundle was served late. She alleged that the TCAB should not take into account news reports which were not authentic and up-to-date.
22. Upon her request, this court fixed a hearing on 8/6/2021. In the hearing, she agreed that it was her fault not to confirm with her relatives first before applying to withdraw. She maintained that her life was in danger. In relation to her claim, there was nothing to update.
23. Although the applicant alleged that the appeal bundle was served late, she actually confirmed during the TCAB hearing that she did not need further time to consider the bundle. She gave evidence and answered questions in detail. There was no record that she could not follow the proceedings. There was no complaint whatsoever recorded in the decision of the TCAB.
24. The applicant alleged in her affirmation that there was no hearing before the TCAB. This was obviously untrue. It could not be an oversight. It demonstrated that she was deliberately misleading in the affirmation.
25. As to the COI, the adjudicator had specifically considered the source and veracity of them in the decision. The news reports were from CNN, ABS-CBN and the Independent. They are well established news agencies. In any event, the news reports were just illustrations of the actions taken by the government. The more important aspect is the findings of the COI by state agencies which are authentic and accurate.
26. In my view, the analysis of the TCAB was accurate. There are material inconsistencies in her evidence which substantially affected her credibility. I agree with the findings of the adjudicator. I am satisfied that there is no error of law. There is no procedural irregularity. The decision of the TCAB is rational.
Conclusion
27. The intended judicial review is not reasonably arguable. There is no realistic prospect of success. I refuse leave for judicial review.”
Appeal to Court of Appeal - grounds of appeal and submission
13. By a notice of appeal filed herein on 20 August 2021, the applicant appealed against the refusal of leave for judicial review on the grounds (1) that she would face hardship if she returned to the Philippines and (2) that the Board had made the groundless speculations by relying on non-officially recognised or hearsay news and outdated cases.
14. By her written submission dated 8 October 2021, the applicant referred to ST v Director of Immigration (sic)[5] [2014] 4 HKLRD 277, Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531 and R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514 for the trite propositions (1) that high standards of fairness are required in the adjudication of non-refoulement claims (and the rationale for such requirement); (2) that the courts will on judicial review subject such adjudication to rigorous examination and anxious scrutiny to ensure that high standards of fairness have been met; and (3) that the necessary high standards of fairness require the claimant to be given every reasonable opportunity to establish his/her claim.
15. The applicant appeared in person at the hearing of the appeal on 22 November 2021. She had nothing to add in further support of the Appeal.
Discussion
Court of First Instance’s role in judicial review in non-refoulement claim
16. 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
17. 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. 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) & (4)].
Appeal has no merit
18. Neither ground raised in the notice of appeal has any merit.
19. First, the question whether the applicant would be at risk of life or torture if she is refouled to the Philippines is a question of fact within the province of the Board (after the Director). The applicant’s much-repeated bare assertion that she would be in danger if she should return to the Philippines is inconsistent with the findings made at both stages of the unified screening mechanism. The applicant had not in the Form 86 or the supporting affirmation before the Judge identified, with any or any sufficient particulars, any error of law, procedural unfairness or irrationality on the part of the Board in finding against her. That being the case, the proposed judicial review was hopeless and leave was rightly refused.
20. Second, the applicant did not particularise the groundless speculations that she said the Board had made or pinpoint the news or cases that wrongly led the Board to such speculations.
21. Turning to the written submissions and the well-established legal principles cited therein, there was no attempt by the applicant to elaborate on whether and, if so, how they had not been honoured in the processing of the NRF Claim.
22. In short, the applicant did not in the notice of appeal or the submission before us (whether written or oral) identify any error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was plainly wrong. We cannot discern any either.
23. In any event, we have anxiously scrutinised the Board’s Decision and the Judge’s Decision and are satisfied that both are in order.
Disposition
24. For these reasons, we see no basis to interfere with the Judge’s Decision. Accordingly, we dismiss the appeal.
| (Aarif Barma) |
(Lisa Wong) |
| Justice of Appeal |
Judge of the
Court of First Instance |
The applicant, unrepresented, appeared in person
[1] This is now referred to as a foreseeable and real present risk of torture covered by Part VIIC of the Immigration Ordinance (Cap 115) which is, in brief, defined in s 37U(1) as severe physical or mental pain or suffering inflicted with state consent or acquiescence to obtain information, or as punishment or intimidation or based on discrimination.
[2] This refers to a risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, which is a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
[3] This refers to a risk of violation of the right to life under article 2 of s 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).
[4] This refers to a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment covered by article 3 of s 8 of the Hong Kong Bill of Rights Ordinance.
[5] The correct citation should be ST v Betty Kwan.
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