HCAL 745/2017
[2018] HKCFI 1891
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 745 of 2017
BETWEEN
Caramat Virginia Lobeban
1st Applicant
Iqbal Syeda Rabika Qaisar (a minor)
2nd Applicant
Iqbal Mohammad Usama Qaisar (a minor)
3rd Applicant
Iqbal Syed Umar Qaisar (a minor)
4th Applicant
and
Torture Claims Appeal Board /
1st Putative Respondent
Director of Immigration
2nd Putative Respondent
Application for Leave to Apply for Judicial Review
Following:
Order by Deputy High Court Judge Josiah Lam:
Leave to apply for judicial review be refused.
Observations for the Applicant
Background
1. The 1st Applicant (“A1”) is a national of the Philippines. She is now aged 46 (DOB: 31 May 1972). The 2nd Applicant (“A2”) is A1’s daughter aged 16 (DOB: 9 March 2002); the 3rd Applicant (“A3”) and the 4th Applicant (“A4”) are A1’s sons respectively aged 17 (DOB: 12 November 2000) and 13 (DOB: 15 September 2004). A2, A3 and A4 were all born in Hong Kong but they had Filipino passports.
2. A1 claimed she and her three children would be harmed or killed by her brother Caramat Levy Jr. (“Levy’) because she had converted from Christianity to Islam and her children were also Muslims. The Applicant said Levy was a security guard and a person-in-charge of a private company.
3. A2, A3 and A4 did not have their own case; their case rested entirely on A1’s claim.
4. A1 was born in the Philippines. She said her parents were Christians and she was baptised when young. She had one brother (“Levy”) and one sister.
5. In November 1994, A1 came to Hong Kong to work as domestic helper. In September 1996, she met a Pakistan man called Qaisar, who came to Hong Kong regularly on business. The two started a relationship. Qaisar was a Muslim.
6. In November 1998, A1 converted to Islam in order to continue her relationship with Qaisar. She acquired a Muslim name Bisma Noor L Caramat.
7. In February 1999, A1 informed her family in the Philippines of her conversion. She told them she would go back to the Philippines to get married with Qaisar. Levy was angry about A1’s marrying to a Muslim and her conversion to Islam.
8. In March 1999, A1 and Qaisar married in a city hall in the Philippines. Her family members including Levy attended the ceremony. However, they refused to attend the reception party because they did not approve the marriage. A1 argued with her mother. Levy became very emotional. He scolded A1 and told her to leave.
9. Later, A1 and Qaisar went to Manila to go through marriage ceremony in a Muslim mosque. On the day before the couple flew back to Hong Kong, Levy threatened A1 that if he killed her there would be no investigation.
10. A1 and Qaisar went back to Hong Kong in April 1999. A1 continued to work as domestic helper while Qaisar travelled frequently between Pakistan and Hong Kong/China to do business.
11. A1 gave birth to A3 in November 2000 and then A2 in March 2002.
12. In July 2003, A1 went to the Philippines with Qaisar, A2 and A3. She wished her relatives could accept her and her children. However, the elders said she was no longer part of their family because she had become a Muslim. Levy refused conciliation. He said he would not accept A1 and her children as Muslims and they had brought shame to their Christian family. A1 returned to Hong Kong a week later with her two children and Qaisar.
13. In September 2004, A1 gave birth to A4.
14. In 2005, A1 ceased her work as domestic helper here. In May 2005, she took A2-A4 to Pakistan to live with Qaisar.
15. In September 2007, A1 and Qaisar brought A2-A4 to the Philippines. Levy was enraged when he saw A1. He refused reconciliation.
16. In December 2007, A1 and Qaisar brought A2-A4 back to Hong Kong. In February 2008, all went back to Pakistan.
17. The relationship between A1 and Qaisar deteriorated. They divorced formally in September 2010. Qaisar had custody of the three children. A1 stayed in Pakistan after divorce. She lived with a friend. A1 said life there was difficult for a divorced woman.
18. In August 2012, A1 learnt her mother had died in the Philippines. She wanted to attend her funeral but Levy threatened he would kill her if she went back to the Philippines. A1 dared not go.
19. In September 2013, A1 left Pakistan and came to Hong Kong with intent to seek employment. However, she could not get a job. Her money was running out so she left for the Philippines in February 2014. She went home. Levy assaulted her. A1 reported the matter to a community unit but not to the police.
20. A1 then went to stay with her old classmate Melissa. However, Levy harassed Melissa so A1 went to live with a friend. A1 was in constant fear that Levy would come for her.
21. In March 2014, A1 learnt Qaisar would bring A2-A4 to Hong Kong. She returned to Hong Kong in early April 2014. Qaisar let the three children stay with A1. After a few days, A1 could not contact Qaisar.
22. Meanwhile, after A1 had left the Philippines in April 2014 Levy kept sending her text messages, threatening that she would be killed if she went back to the Philippines. The last message was sent to her in August 2014. Levy wrote, “Remember it was not only your life which is at risk, but also your children.”
23. A1 believed Levy would kill her and her children because he would not accept them as Muslims. Therefore, they could not go back to the Philippines.
24. A1 had not sought assistance from the Philippines police. She said the Philippine authorities could not protect her and her children.
25. A1 said living in other parts of the Philippines would be difficult. She did not know which organisation could help her. She also claimed she had a lot of relatives living in different places of the country and they would inform Levy of her whereabouts. She thought internal relocation was not a viable option.
26. A1 lodged a non-refoulement claim for herself and A2-A4 on 8 May 2014.
27. In the ensuing two-tier screening process here (“the Unified Screening Mechanism”), 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 A1-A4’s claims 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 (CIDTP risk or BOR3 risk) [3] and (iv) risk of violation of the right to life (BOR2 risk) [4] .
28. On 10 October 2017, A1 applied for leave for judicial review for herself and her three children.
Chronology of events
29. Things happened in this order: –
1994-11-28
A1 came to Hong Kong to work as domestic helper.
2000-11-12
A1 gave birth to A3 in Hong Kong.
2002-3-9
A1 gave birth to A2 in Hong Kong.
2004-9-15
A1 gave birth to A4 in Hong Kong.
2005-5-15
A1 left Hong Kong with A2-A4. They finally went to Pakistan.
2007-8-14
A1 came to Hong Kong as visitor. She travelled between Hong Kong and China once in September 2007. She left Hong Kong for the Philippines on 26 September 2007.
2007-12-5
A1-A4 entered Hong Kong as visitors on the strength of their Philippines passports. They subsequently travelled between Hong Kong and China on a number of locations. On 29 February 2008, A1-A4 left Hong Kong for Pakistan.
2013-9-29
A1 entered Hong Kong as visitor. On 13 February 2014, she departed Hong Kong for the Philippines.
2014-4-1
A2-A4 entered Hong Kong from Pakistan as visitors.
2014-4-2
A1 entered Hong Kong from the Philippines as visitor.
2014-5-3
A1-A4 began overstaying in Hong Kong.
2014-5-5
A1-A4 surrendered to the Immigration Department.
2014-5-8
A1 lodged a non-refoulement claim for herself and A2-A4.
2014-10-17
The Director conducted a screening interview.
2014-10-24
The Director refused the non-refoulement claims of A1-A4 with respect to these three applicable grounds: (i) torture risk, (ii) persecution risk and (iii) CIDTP risk (BOR3 risk) . [“the Director's decision”]
2014-11-7
A1-A4 appealed to the Board.
2015-5-15
A1-A4 appeared before the Board for appeal.
2016-1-15
The Adjudicator refused the non-refoulement claims of A1-A4 with respect to these three applicable grounds: (i) torture risk, (ii) persecution risk and (iii) CIDTP risk (BOR3 risk) . [“the Board's decision”]
2016-12-30
The Director invited A1-A4 to submit additional facts for the consideration of the fourth applicable ground: life risk (BOR2 risk).
2017-1-14
A1-A4 failed to submit additional facts by the deadline or thereafter.
2017-2-8
The Director refused the non-refoulement claims of A1-A4 with respect to the fourth applicable ground: life risk (BOR2 risk). [“the Director's further decision”]
2017-9-22
The Adjudicator refused the non-refoulement claims of A1-A4 with respect to the fourth applicable ground: life risk (BOR2 risk). [“the Board’s further decision”]
2017-10-10
A1 applied for leave for judicial review for herself and A2-A4.
Respondents
30. 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 case on a rehearing basis.
31. In Form 86 (the notice of application for leave to apply for judicial review), the Applicants named the Board and the Director as respondents. The Board is the first putative respondent; the Director is the second putative respondent.
32. An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.[5]
33. In the present case, the Director's decision plus further decision and the Board’s decision were more than three months old by the time the Applicants filed their application for leave for judicial review on 10 October 2017. However, the Applicants should not seek judicial review against the Director's decision plus further decision and the Board’s decision before the Board rendered its final decision [“the Board’s further decision”] on 22 September 2017. Therefore, I consider there is a good reason to allow the Applicants to apply for leave for judicial review against the Director's decision plus further decision and the Board’s decision albeit late on 10 October 2017; the application against the Board's further decision was made in time.
Director of Immigration (the Director)
34. In the Director’s decision dated 24 October 2014, the immigration officer did not make specific findings on A1's credibility. (A1 made statements for herself and her three children; A2-A4 did not give their own statements or evidence.) However, even on A1’s own account of allegations the officer considered the level of risk of harm against A1-A4 was low. The Applicants had not been inflicted with ill-treatment to a minimum level of severity. The officer was not satisfied that Levy had real intention to kill A1-A4.
35. The officer found the situation complained by A1 was only a personal dispute in religious belief between her and Levy. It did not fall within the definition of persecution on account of religion. It was also not instigated, consented or acquiesced by the Philippines government or officials or persons in official capacity.
36. The officer noted there were reports of corruption in the Philippines but there was also objective country-of-origin information (“COI”) showing reforms in the country. There were channels to lodge complaints against the police if they did not discharge their duties. The officer found that A1 had not reported her alleged fear to the police in the Philippines. The officer did not accept reasonable state protection was not available to the Applicants. He found internal relocation was also viable in the Applicants’ case.
37. The officer did not accept A1-A4 had any real torture risk, persecution risk and CIDTP risk (BOR3 risk). He refused the Applicants’ claims with respect to those three applicable grounds.
38. Later, the Director wrote to the Applicants inviting them to submit additional facts for the consideration of the fourth applicable ground, i.e. life risk (BOR2 risk). However, the Applicants did not respond by the deadline or thereafter.
39. In the Director’s further decision dated 8 February 2017, the officer considered the Applicants failed to establish a personal and real risk of their rights under HKBOR being violated (including the right to life under BOR2). He refused A1-A4’s claims with respect to the fourth applicable ground: life risk (BOR2 risk).
TCAB/NCPO (the Board)
40. In the appeal hearing on 15 May 2015, A1-A4 did not testify before the Adjudicator.
41. The Adjudicator did not make specific findings on A1's credibility. (A1 made statements to the Director for herself and A2-A4; A2-A4 did not give their own statements or evidence.) However, even on A1’s own account of allegations the Adjudicator found the Applicants did not suffer any severe pain or suffering, mental or physical. They were not targeted by the state. The situation complained by A1 was not instigated, consented or acquiesced by a state agent. It was also not on account of race, religion, nationality, membership of a particular group or political opinion.
42. The Adjudicator agreed to the Director's assessment of A1-A4’s case.[6]
43. The Adjudicator had considered relevant COI. He concluded reasonable state protection and internal relocation were available to the Applicants.
44. In his decision dated 15 January 2016, the Adjudicator did not accept the Applicants faced any torture risk, persecution risk and CIDTP risk (BOR3 risk). He refused A1-A4’s claims with respect to those three applicable grounds.
45. In his further decision dated 22 September 2017, relying on his earlier finding of facts the Adjudicator did not accept the Applicants faced life risk (BOR2 risk). He refused A1-A4’s claims with respect to the fourth applicable ground: life risk (BOR2 risk).
Grounds of judicial review
46. In A1’s affirmation, she complained the Director and the Adjudicator failed to consider the concept of extended state of acquiescence; failed to conduct sufficient and independent inquiry of country-of-origin information (“COI”); failed to weigh up competing COI; cherry-picked information; failed to consider their psychological suffering; failed to conduct interview/hearing on BOR2 risk; misdirected in law; rendered wrong decisions.
Court hearing
47. The Applicants requested a hearing. The hearing took place on 12 June 2018. A Tagalog interpreter provided assistance in court. A1 made submission for herself and A2-A4.
48. A1 confirmed all the grounds of judicial review were in the affirmation.
49. A1 clarified that A2-A4 had been to the Philippines with her. A2 and A3 had been there twice, in 2003 and 2008; A4 once, in 2008. The three children had never met Levy.
50. A1 repeated it was dangerous for her to return to the Philippines with the children. In relation to living in Pakistan, she said divorced women were not respected.
51. A1 confirmed she had submitted all information and materials to the Director and the Adjudicator for their consideration of the non-refoulement claims of herself and her children.
Discussion
52. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
53. 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’.[7]
54. A1 complained there was no interview or hearing held on BOR2 risk.
55. The Director had issued a letter dated 30 December 2016 inviting the Applicants to submit additional facts for the consideration of BOR2 risk. A1-A4 failed to submit additional facts by the deadline or thereafter. In such circumstance, the Director and later the Adjudicator were justified to continue to assess the Applicants’ claims on the information before them. There was no need for the Director or the Adjudicator to hold further interview/hearing on BOR2 risk. In court, A1-A4 failed to establish what they could have contributed on the issue of BOR2 risk. In fact, A1 confirmed she had submitted all information and materials to the Director and the Adjudicator for their consideration of the non-refoulement claims of herself and her children.
56. A1 complained the Director and the Adjudicator failed to consider the concept of extended state acquiescence.
57. A1’s complained situation was not instigated by the Philippines government or officials or persons in official capacity. A1 had never reported the alleged threats from Levy to the Philippines authorities. There was no evidence that the state had consented or acquiesced to the complained situation. There was no issue of state acquiescence of any kind.
58. A1 argued that the case of her and her children was related to religious conflict.
59. The Director found A1’s complained situation was only a personal dispute in religious belief between her and Levy. It did not fall within the definition of persecution on account of religion. The Adjudicator agreed with the Director.
60. On A1’s own assertions, Levy was angry about her conversion to Islam and that her children were Muslims. However, that was only her brother’s alleged personal dislike of Muslims. It was not a class conflict or persecution.
61. The Director and the Adjudicator found the Applicants faced no torture risk, persecution risk, CIDTP risk (BOR3 risk) or life risk (BOR2 risk) that warranted non-refoulement protection. Their findings were not Wednesbury unreasonable.
62. A1 further complained the Director and the Adjudicator failed to weigh up competing COI.
63. The Director and the Adjudicator had referred to sufficient COI for and against the Applicants. They need not state their mental process of evaluation. There was no evidence of bias or cherry-picking of information. Their findings and conclusions on state protection and internal relocation were not Wednesbury unreasonable.
64. The other complaints by the Applicants were vague. I have reviewed the Director's decisions and Adjudicator’s decisions under ‘rigorous examination and anxious scrutiny’. I am satisfied the Director and the Adjudicator had proper basis for their findings, conclusions and decisions which were not Wednesbury unreasonable. They made no errors of law and there was no procedural unfairness. There is no substance in the Applicants’ complaints against the Director and the Adjudicator, who had each engaged in joint endeavour with the Applicants in the screening process. The Applicants had been given reasonable and sufficient opportunities to state and elaborate their case. The reports of the Director and the Adjudicator showed they were acquainted with the facts and applied the law correctly. They considered the Applicants’ case carefully. They were entitled to render those findings, conclusions and decisions which were all reasonable. The Director and the Adjudicator had achieved the high standards of fairness required of the Applicants’ non-refoulement claims.
Conclusion
65. The complaints of A1-A4 are not reasonably arguable either against the Director or the Board. They have no realistic prospects of success in the sought judicial review. I therefore refuse to grant them leave for the review.
Dated 23rd day of August 2018
(Alan Ngan)
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
Notes for the Applicant :
If leave has been granted, the Applicant or his solicitors must:
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)).
Sent to the Applicants on 23/8/2018
Caramat Virginia Lobeban(A1) Iqbal Syeda Rabika Qaisar (a minor) (A2) Iqbal Mohammad Usama Qaisar (a minor) (A3) Iqbal Syed Umar Qaisar (a minor) (A4)
Applicants’ ref. no:
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 23/8/2018
Torture Claims Appeal Board /Non-Refoulement Claims Petition Office st Putative Respondent’s ref. no.:
Director of Immigration nd Putative Respondent’s ref. no.:
Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)
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] Order 53, rule 4 of the Rules of the High Court.
[6] The Adjudicator’s Report dated 15 January 2016, para 17.
[7] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.