MAPILI EMILYN SAMPAGA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL712/2017

[2018] HKCFI 1628

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 712 of 2017

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of the documents only;     or
	consideration of the documents and oral submissions by the Applicant in open court;

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge Woodcock):

1.  The applicant is a Filipino national who arrived in Hong Kong on 29 September 2010 as a foreign domestic helper on a two-year contract permitted to remain until 29 September 2012 or two weeks after termination of contract, whichever was earlier.  On 8 September 2011 the applicant was arrested by the police for theft.  Her employment contract was prematurely terminated on the same day.  On 12 October 2011 the applicant was admitted to the Immigration detention centre after her discharge from prison having served a term of imprisonment.  She was technically an over-stayer in Hong Kong.  She wrote to the Immigration Department by way of written significations in October and November 2011 expressing her unwillingness to return to the Philippines.  In December 2011 she was released on recognizance but did not report as required and a warrant of arrest was issued against her.  She was not arrested by the police until 10 May 2014 after which she then lodged a non-refoulement protection claim.

2.  The Director of Immigration (“the Director”) dismissed her claim on 17 June 2015 and 8 June 2017. The applicant lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”) which dismissed her appeal on 20 September 2017.  She filed a notice of application for leave to apply for judicial review on 3 October 2017 and requested an oral hearing which was set down for 6 March 2018.  The applicant appeared in person on the hearing date but immediately applied for an adjournment because she had not yet had the result of her legal aid application.  Her application was refused because she made an application for legal aid much later than her application for judicial review without good reason; I took the view that her application was tardy, an abuse of process and an attempt to prolong the proceedings.  Her application for legal aid was refused on 19 March 2018.

3.  The basis of her claim was that if she were to return to the Philippines she would be harmed or killed by her stepfather because he lent her money and she had not repaid him and/or her husband because the applicant had a boyfriend in Hong Kong.  Both the Director and the adjudicator of the TCAB set out the applicant’s evidence and case in detail in their decisions therefore, I only intend summarise it here.

4.  The applicant was born in 1979 and borrowed 265,000 pesos from her stepfather in order to come to work in Hong Kong as a foreign domestic helper.  She was supposed to repay him 10,000 pesos a month from her salary once she started working in Hong Kong.  She arrived in September 2010 and repaid him from December 2010 until April 2011 but from May 2011 she used her salary to pay for her own daughter’s medical expenses.  She then lost her job in September 2011 and has been unable to make any further repayments. He told her over the telephone that he would kill her when she returned to the Philippines, telling her there was nowhere she could hide in the entire country so she better not return.  She still owes him 205,000 pesos plus interest and has not spoken to him since that phone call.

5.  In March 2012 the applicant met a man in Hong Kong who became her boyfriend.  Her relationship with her husband in the Philippines was not good and they were rarely in contact.  In August 2012, which is after the applicant lodged her claim, a friend from her husband’s village went home from Hong Kong and told her husband that the applicant had a boyfriend in Hong Kong.  Not long after, the applicant’s husband called her and told her she was committing adultery and if she ever returned to the Philippines he would beat her or even kill her as she was still his wife.  Her husband is a senior police officer and had a gun.  The applicant hung up the telephone and has not spoken to him since that call.

6.  The adjudicator, as did the Director, analysed the applicant’s claim under all applicable grounds;

(a)   risk of torture as defined in part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, (“torture risk”);

(b)   risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of Hong Kong Bill of Rights Ordinance Cap 383 and Article 7, International Covenant on Civil and Political Rights (“ICCPR”) (“BOR 3 risk”);

(c)   risk of persecution by reference to the non-refoulement principal under Articles 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“persecution risk”); and

(d)   risk of a violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Article 6 ICCPR (“BOR 2 risk”).

7.  The Director assessed the applicant’s case on the basis that she was telling the truth.  On her own facts, she had never suffered any serious harm, be it physical or mental.  She had never reported any of the threats to the police or any authority.  Her problems were private disputes and she was not the target of the State.  The Director considered relevant, up-to-date and objective Country of Origin information (“COI”) and concluded that there was State protection available to the applicant if she was at any risk upon her return to the Philippines and internal relocation was a viable option without undue hardship.

8.  As a result of his careful assessment, the Director when he applied his findings to the law and key legal principles, he found the applicant was unsuccessful in showing she was at risk of torture, unable to invoke the protection of BOR 2 or BOR 3 and could not prove a persecution risk within the definition of the Refugee Convention for the purpose of a non-refoulement protection claim.

9.  The adjudicator of the TCAB conducted an oral appeal hearing and treated it as a rehearing.  He set out the applicant’s claim and evidence as well as the law and key legal principles applicable to the four grounds.  He considered the applicant’s reliability and credibility by comparing the letters and her claim form she wrote to the Immigration Department in a chronological order.

10.  The adjudicator considered the fact she did not mention her stepfather’s death threat to the Immigration Department right after he made it but much later, nearly four years later.  He suspects she made this up to bolster her claim.  Her husband’s threat to kill her was made in August 2012 yet it was not until she was arrested by the police in May 2014 under an arrest warrant did she lodge a non-refoulement protection claim.  A person seeking genuine protection would make a claim as soon as possible; waiting until after an arrest will affect credibility.  The adjudicator concluded her evidence was not reliable and dismissed her claim.

11.  It appears from reading his decision that the adjudicator however, did not put any of the above inconsistencies and discrepancies to the applicant and give her any opportunity to explain or clarify them before finding the applicant an unreliable claimant. This is what he should have done but it is a moot point because the adjudicator does go on to assess the applicant’s case on the basis that he believes the applicant’s evidence entirely and even on her own facts, like the Director, he finds she is unsuccessful in her claim.

12.  He too considers objective, relevant and up-to-date COI that shows available State protection for the applicant if she faces any risk from her stepfather or her husband upon her return to the Philippines.  There is COI that shows internal relocation is a viable option without undue hardship.

13.  The adjudicator considers her evidence that her problem between her and her stepfather stems from a debt she owed him.  She has never suffered any serious injuries, physical or mental. She has never made a police report.  Her problems are without official involvement.  She is not a State target.  The facts of her case do not touch on death sentence and genocide and there is no evidence of a personal and real risk of her being arbitrarily deprived of her life in violation of BOR 2.  Her fear does not fall within any of the reasons set out in the Refugee Convention because they arise from private disputes, hence there is no risk of persecution.

14.  The adjudicator found when he applied the applicant’s evidence to all four grounds, the applicant had not made out a case for non-refoulement protection.  He too found the applicant was unsuccessful in showing she was at risk of torture, unable to invoke the protection of BOR 2 or BOR 3 and could not prove a persecution risk within the definition of the Refugee Convention for the purposes of a non-refoulement protection claim.  He confirmed the decision of the Director.

Leave to apply for judicial review

15.  I have to consider with rigourous examination and anxious scrutiny the papers and grounds of this application.  The supporting affirmation does not set out the applicant’s grounds clearly but essentially a complaint that the Director did not consider the extended concept of State acquiescence.  They Director did not properly consider the COI in view of the fact her husband is a senior police officer; police corruption is rife in her country.  The applicant also complains that the adjudicator has failed in a similar way to the Director as far as the COI is concerned and submitted a newspaper article from the South China Morning Post dated 18 January 2017 referring to examples of police corruption in the Philippines.

16.  The applicant did not rely on the extended concept of State acquiescence.  The applicant made no report to the police or any authority in the Philippines.  The decision-makers did not consider this concept.  This is not a case where State authorities or others acting in an official capacity knew or had reasonable grounds to believe that any acts of torture or ill-treatment were being committed by non-State officials or private persons and they failed to exercise due diligence to prevent, investigate, prosecute and punish such non-State officials or private persons.  I find no substance in the applicant’s first complaint or ground against the Director.

17.  As far as the complaints against fair and proper consideration of COI is concerned, both decision-makers obviously referred to objective, relevant and up-to-date material.  The applicant was legally represented before the Director.  In her affirmation she submits that the COI is speculative but provides no further particulars to support that submission.  I find this complaint and ground against both decision-makers without merit.

18.  I do not find any ground that shows there was an error of law by the adjudicator.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.  The same applies to the decision of the Director.

19.  In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.

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

Form CALL-1