RE VILA MA ANTHEA LAGAT

CACV 385/2021

[2021] HKCA 1836

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 385 OF 2021

(ON APPEAL FROM HCAL 2838 OF 2018)

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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 To (“Judge”) on 30 July 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 8 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 7 September 2017 (“Director’s Decision”)[1].

Basis and allegations in support of NRF Claim

2.  The basis of the NRF Claim made by the applicant, a national of Philippines, is a fear of being harmed or even killed by her husband, Melchor C Vila (“MV”), as a result of her extra-marital relationship with Bijau.

3.  The circumstances allegedly giving rise to such fear have been set out in paragraph 8 of the Director’s Decision, paragraphs 9 to 21 of the Board’s Decision and [5] to [10] of the Judge’s Decision embodied in the Form CALL-1 [2021] HKCFI 2156 (“Form CALL-1”).

4.  Briefly:

(1)  The applicant married MV in 2009.  They have a son.

(2)  MV was an alcoholic and a drug addict.  From 2009 to 2013, he constantly subjected the applicant to physical violence and verbal threats, including death threats.  She however never sought medical treatment for her injuries or reported the abuses inflicted upon her by MV to the police.

(3)  In August 2013, to avoid MV, the applicant came to Hong Kong to work as a foreign domestic helper.  MV kept telephoning her for money.  When the applicant refused, he threatened to harm her whenever he saw her in the Philippines.  The applicant changed her phone number in 2015 to avoid MV’s calls.

(4)  The applicant met Bijau in Hong Kong in July 2015.  They fell in love about a month later.  By August 2016, the applicant was pregnant with Aayan.

(5)  MV was alerted by some relatives working in Hong Kong that the applicant was pregnant.  He tricked the applicant’s parents into giving him her new phone number.  MV threatened over the phone to kill the applicant and Aayan whenever he saw them in the Philippines.  The applicant hung up.  After further threatening messages by MV via Facebook, the applicant changed her phone number again in November 2016.  She has not since heard from MV.

Overstaying in Hong Kong and lodgment of NRF Claim

5.  The applicant last arrived in Hong Kong on 15 August 2013 with permission to remain until 18 July 2016. However, she overstayed and surrendered to the Immigration Department on 5 September 2016.  She raised the NRF Claim by written submissions dated 10, 23 and 25 January 2017 and completed a Non-Refoulement Claim Form dated 12 July 2017 (“NCF”).

6.  After considering the information provided by the applicant in her NCF and at the Interview, the Director found the NRF Claim unsubstantiated under any of the applicable grounds for non-refoulement protection: torture risk[2], persecution risk[3], “BOR 2” risk[4] and “BOR 3” risk[5].

(1)  First, the risk of future harm from MV was low.  MV did not attempt to approach the applicant at all during her half year stay in Manila before her departure.  Although MV was later able to track down her new phone number to confront her about her pregnancy, nothing untoward happened to the applicant afterwards.  Further, the past ill-treatment did not attain a minimum level of severity.  She did not seek or require professional medical treatment for the injuries inflicted by MV.

(2)  Second, reasonable state protection would be available to lower or even negate the risk (if any).  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 channels for complaints against police misconduct. The applicant chose not to seek help from the police, contending that they would not have assisted her as MV had powerful relatives within the police and the government.

(3)  Third, the perceived risk, being localised in the applicant’s hometown Pasuquin, can be further reduced by internal relocation within a large populous country like the Philippines.  The applicant, an able-bodied adult with 14 years of formal education and 4 years of working experience in the Philippines and Hong Kong, would suffer little or no hardship in moving to say Quezon.

Appeal to Board and Board’s Decision

7.  The applicant appealed to the Board.  The Board conducted a rehearing of the NRF Claim on 24 July 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.  Even proceeding on the basis that the claim of domestic violence by MV were credible, the Board found that the applicant’s fear could be resolved by seeking police/state protection and/or by relocating within 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 2838/2018 on 11 December 2018, the applicant applied for judicial review of the Board’s Decision without stating any proposed ground.  In her supporting affidavit filed on the same day, the applicant simply repeated her fear of harm from MV in the Philippines and stated that she wanted to remain in Hong Kong to take care of Aayan.

10.  The applicant did not request an oral hearing. After considering the material before him, the Judge refused leave on paper for the reasons set out in [18] to [24] of the Form CALL-1:

“18. In her supporting affirmation, the Applicant sought to reverse the Decision because of the threat on her life from her husband if she returned to the Philippines. She said she did not want to return because she has a son to look after in Hong Kong so that his father could go to work. She annexed a supporting letter from her Nepalese partner to the effect that their son is not accepted by his family and he needed the Applicant to stay in Hong Kong to look after his son.

19. The Board’s Decision was reached on the basis of the Applicant’s evidence that her husband had threatened to harm or kill her and her son born with her Nepalese partner. The Board even assumed for her benefit that state protection was not effective. What the Board did not accept was the Applicant’s assertion that her husband had a wide network to locate her anywhere in the Philippines and that the threat could not be avoided by internal relocation. The Board found she had failed to prove how her husband’s relations could help him to locate her anywhere in the Philippines and why, given her qualification and experience, it would not be reasonable to expect her to relocate herself to avoid the harm.

20. The Applicant sought to rely on her son and her Nepalese partner to support her non-refoulement claims. Her Nepalese partner may need the Applicant to look after their son to enable him to work. The three of them may need each other. But that is not a recognized ground under any of the applicable grounds under the USM. It may be a ground for extension of the Applicant’s permission to stay. Those considerations are outside the scope of judicial review. Besides, her Nepalese partner, being a Hong Kong resident, could obtain welfare assistance for the maintenance of his son.

21. The Applicant is complaining against the result of the Decision and not its propriety. There is no complaint about procedural unfairness, unreasonableness or irrationality in the Decision. In reality, she is complaining against the finding of fact of the Board. Specifically, she is complaining against the Board’s rejection of her evidence that her husband could locate her with his network and the finding that it would not be unreasonable to require her to relocate herself to avoid the harm.

22. The function of the court in judicial review is not to re-assess the non-refoulement claims afresh. 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. In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration. Thus, in the absence of specific grounds for application, the Court could only focus its attention on possible criticism of the Decision on the basis of error of law, unreasonableness, irrationality, and procedural unfairness.

23. 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 law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; and observed a very high standard of fairness. 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. This conclusion was further supported by availability of internal relocation. The Board’s Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge her burden of proving her fears and risks. These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. There are no such vitiating elements in the Decision. The Decision is utterly without fault. The Applicant’s claims are not reasonably arguable. There is no realistic prospect of success in the proposed judicial review.

Conclusion

24. For the above reasons, leave to apply for judicial review was refused.”

Appeal to Court of Appeal - grounds of appeal and submissions

11.  By the notice of appeal filed herein on 12 August 2021, the applicant appealed against the refusal of leave for judicial review on the ground that the Judge and the Board has “disregard[ed] [her] dangerous situation”.

12.  In breach of paragraph 3(1) of the directions given by the Registrar of Civil Appeals on 21 September 2021, the applicant failed to lodge skeleton submissions 28 days before the hearing of the appeal, i.e. on or before 25 October 2021.  The applicant lodged her skeleton argument late on 4 November 2021.  Considering the relatively short delay, this court granted retrospective extension of time for the applicant to file her skeleton argument and restored the hearing of the appeal.

13.  By her skeleton argument dated 4 November 2021, the applicant complained that:

(1)  her case has not been determined fairly;

(2)  there is no proper or fair mechanism whereby unrepresented claimants with limited language capability and resources (like herself) are provided with legal and language assistance to allow them to understand how their cases have been determined;

(3)  the authorities have a policy to dispose of non-refoulement claims as quickly as possible and ignore the procedural unfairness;

(4)  the Board had unlawfully fettered its discretion by refusing the applicant’s appeal on the grounds that “they did not satisfy the requirement”;

(5)  the adjudicator acted in a procedurally unfair manner in dealing with her appeal; and

(6)  the dismissal of her appeal was unreasonable and irrational in the public law sense, or was as a result of procedural errors or unfairness.

14.  The appeal was heard on 22 November 2021. The applicant appeared in person and had nothing to add in further support of the appeal.

Discussion

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

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.  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)].

No arguable ground of judicial review or ground f appeal

17.  Whether the applicant would be at risk of harm or life if she is refouled to the Philippines and, if so, whether the danger would be lowered or negated by the availability of state protection and/or reasonable internal relocation options are all questions of fact within the province of the Board (after the Director).  The applicant’s repeated assertion that she would be in danger if she should be refouled to the Philippines is inconsistent with the finding by both the Director and the Board that it was viable and reasonable for her to relocate within the Philippines to avoid the perceived risk. 

18.  The applicant’s subjective wish to raise Aayan in Hong Kong is not a ground for non-refoulement protection.  Whether it may form a basis for the Director to exercise its compassionate discretion is not a matter for the court.

19.  Consequently, the applicant did not in the Form 86 or her supporting affirmation identify any error of law, procedural unfairness or irrationality on the part of the Board.  The proposed application for judicial review is thus hopeless and leave was rightly refused. 

20.  That being the case, we do not see how it could be contended that the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong.  The applicant has not identified any in either her notice of appeal or skeleton argument. 

21.  In this regard, what we have said in [17] above applies equally to the applicant’s assertion in the notice of appeal that her dangerous situation had been disregarded in the screening process.

22.  As for the complaints raised in her supporting affirmation, first, none of them were raised before the Judge.

23.  Second, those set out in [13(1)], [(4)], [(5)] and [(6)] above are too vague and lacking in particulars to merit any serious consideration.

24.  Third, on the lack of legal representation, 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.  It suffices for claimants to be offered with free legal representation via the CAT Office of the Duty Lawyer Service (“DLS”) during the screening stage, with further legal services being provided in the ensuing legal proceedings only on merits.

25.  In the instant case, the applicant did have the benefit of legal representation from the DLS in presenting her case to the Director in both the NCF and at the Interview.  The Director’s Decision was sent to the applicant care of the DLS.  One would have expected the DLS to interpret and explain the same to the applicant before they ceased to act for her.  Other than a general complaint, she has not pointed out in what ways she was 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.

26.  As for language assistance, interpreters were present at the Interview with the Director and the hearing before the Board. The applicant did not highlight any particular aspects where the lack of interpretation service before/after that interview or hearing had hampered the presentation of her case.

27.  More seriously, the applicant boldly alleged the existence of a general public policy to rush through the processing of non-refoulement cases in disregard of procedural fairness without adducing an iota of supporting evidence.  Such accusation is a proforma complaint made by numerous claimants.  It comes out of nowhere and is most unjust.  To the contrary, enormous amounts of time and manpower have been, and are continuing to be, expended on dealing with non-refoulement claims.  Take the present case, which is nothing but typical, as an example, the screening process and the ensuing legal proceedings in respect of the NRF Claim has up to now taken almost 5 years.  This can, on no or no reasonable view, be described as “quick”.  Indeed, it is not at all unusual for cases to take longer.  Both the Director and the Board have heard evidence from the applicant regarding all aspects of her claim and explained in detail by the Director’s Decision (19 pages) and the Board’s Decision (18 pages) why they rejected the claim/dismissed the appeal.  Thereafter, the applicant (like all other claimants) was given the opportunity to apply for leave for judicial review of the Board’s Decision before a judge of the Court of First Instance and thereafter to appear before this court to appeal against the Judge’s Decision (and possibly to seek to appeal our decision to the Court of Final Appeal).  Claimants are provided with free legal services by the DLS in completing and submitting the non-refoulement claim form, attending the screening interview and having the Direction’s decision explained to them.  They are also given free language assistance from qualified interpreters at all interviews and hearings.  In short, the whole mechanism of the 2-tier screening and the 2-stage legal scrutiny is clearly not designed with the intention of quick disposal of non-refoulement claims at the expense of procedural fairness.

28.  In any event, we have anxiously examined the Board’s Decision and the Judge’s Decision and are satisfied that both are in order.

Disposition

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