RE BANSILES JAMAICHA BAGUINDO

CACV 98/2018

[2018] HKCA 641

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 98 OF 2018

(ON APPEAL FROM HCAL NO. 871 of 2017)

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J U D G M E N T

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Hon Chu JA (giving the Judgment of the Court):

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 29 March 2018 refusing her leave to apply for judicial review.  The intended judicial review is against the decisions of the Director of Immigration (“the Director”) dated 18 May 2016 and 6 January 2017 rejecting her non-refoulement claim and the decision of the Non-refoulement Claims Petition Office/ Torture Claims Appeal Board (“the Board”) dated 3 November 2017 dismissing her appeal against the Director’s decisions.  The applicant agrees to the appeal being heard before a two-judge court.  

2.  The applicant is a national of the Philippines.  She came to Hong Kong in November 2006 to work as a domestic helper.  Her employment contract was terminated prematurely, and she has overstayed since April 2007. She was arrested by the police on 15 March 2009.  She lodged a torture claim in 2009 which was rejected by the Director in October 2012, and her appeal to the Board was dismissed in February 2013.  On 17 October 2014, the Court granted her application for judicial review, and her torture claim was remitted to the Director for reconsideration.  Upon the commencement of the unified screening mechanism, the applicant’s claim was assessed as a non-refoulement claim under all applicable grounds.

3.  The applicant’s claim was based on her fear that, if she returned to the Philippines, she would be harmed or killed by two creditors, Boy Sison (“BS”) and Gilbert Gacutan (“GG”), because she had failed to repay her loans.  According to the applicant, she took a loan from BS to pay for a training course in London, which did not materialise as the employment agency ran away with her money.  She then took another loan from GG to enable her to come to Hong Kong to work.  BS was said to be an influential man, the leader of a gang, and well connected with politicians and the New People’s Army (“NPA”), which is a guerrilla group in the Philippines while GG was a moneylender and related to local politicians.  The applicant said that as a result of her failure to make repayments, her family members were harassed, threatened and assaulted, and her family home was vandalized.  The applicant provided to the Director a document from the Barangay Captain’s office (“Barangay Captain Document”) as proof of her account that her parents had made a complaint about the harassment, threat and assault to the family and the property damage to the family home. 

4.  By the Notice of Decision dated 18 May 2016, the Director rejected the applicant’s claim having regard to the BOR 3 risk[1], the persecution risk[2], and the torture risk[3].  The Director assessed the risk of harm from her creditors to be low, which was further reduced or negated by the availability of state protection and internal relocation options.  By letter dated 9 December 2016, the Director invited the applicant to provide additional information relevant to an assessment of the BOR 2 risk[4].  The applicant replied on 23 December 2016, in which she mentioned the creditors went to her home several times between May and July 2016 to demand repayments and threatened her parents, attacked her brother and molested her sister.  By a Notice of Further Decision dated 6 January 2017, the Director decided against the applicant under the BOR 2 risk ground.

5.  The Board heard the applicant’s appeal against the Director’s decisions on 2 February 2017.  The applicant provided a number of documents to the Board relating primarily to the levels of crime, terrorist attacks and killings in the war on drugs in the Philippines.  With the assistance of an interpreter, the applicant gave an account of her case to the Board, which was set out in [26] to [38] of the Board’s decision.  For reasons given in [39] to [53] of the decision, the Board, while accepting that the applicant had borrowed two loans, failed to repay them and that legal action to recover the debts might have been commenced, did not accept that the applicant’s creditors had harmed her family members and issued threats to harm her.  It also did not accept that the Barangay Captain Document (see [3] above) was a genuine document and refused to place weight on it.  The Board concluded that the risk of harm to the applicant should she return to the Philippines to be extremely low.  It also found that none of the applicable grounds were made out and dismissed the appeal. 

6.  The applicant filed her Form 86 on 13 November 2017 seeking leave to apply for judicial review.  The applicant’s supporting affirmation filed on the same day advanced the following grounds in support of the relief sought:

(a)   The Board failed to conduct an oral hearing, and to give her sufficient opportunity to present her case, in connection with the BOR 2 risk assessment. 

(b)   The Director and the Board failed to make full and proper inquiries into, and assessment of, the country of origin conditions, and were selective in their approach to country of origin information (“COI”).

(c)   The Director and the Board failed to consider the concept of extended state acquiescence.

(d)   The Board failed to properly and fairly assess the risk of harm to her upon her return to the Philippines.

(e)   The Board erred in not accepting the Barangay Captain Document.

7.  The Judge held an oral hearing on 9 March 2018 to hear the leave application.  He dismissed the application and gave the following reasons in [15] to [21] of the Form CALL-1 dated 29 March 2018, [2018] HKCFI 701:

“15. Ground (a) of the applicant can be easily rejected as wholly without basis since the Board did conduct an oral hearing on 2 February 2017 during which the applicant was able to give evidence and answer questions from the Board with the assistance of an interpreter, and which would have given her an entire month to prepare for her case regarding her claim under BOR 2 risk after her receipt of the Director’s Further Decision rejecting her such claim back in early January 2017.

16. As for Ground (b), without providing any particulars or specifics by the applicant, it is not possible to see in what ways did the Director or the Board fail to make full and proper inquiries of COI or being selective in their assessment of her claim, as it is clear that high standard of fairness does not entitle the applicant to just make the claim and then “simply sit back and require the Director to disprove it.”: CH v Director of Immigration [2011] 3 HKLRD 101, para 47.

17. As pointed out by both the Director and the Board, the applicant’s claims about BS’s political influence and connection with NPA were all just based on her own speculation without any or any sufficient and objective evidence, but still the Director did refer to objective COI which may corroborate her assertion about corruptions in some government officials and police as well as terrorist activities of NPA in some parts of the Philippines, they also show that state protection and a functioning judiciary system are available for all citizens. I am simply unable to see any procedural unfairness in the process of their consideration of COI in the assessment of the applicant’s claim.

18. As for Ground (c), again without any particulars or specifics provided by the applicant, it is not clear as to how the concept of extended state acquiescence be relevant to the threats from BS or GG, in particularly as pointed above in the absence of any evidence that they were the acts of the state or state agents or were acquiesced by the state.

19. Ground (d) is again such a broad and vague statement that is wholly without merit, in particularly in view of the Board’s findings that the applicant has exaggerated her claim of fears from her creditors, that it was a private localized monetary dispute between her and her creditors and given that her family has been able to still live fairly safely in their house all these years, and that in the absence of any evidence that any acts of her creditors were acquiesced by the state, I am unable to find any error in law or procedural unfairness in its arrival of the conclusion that it would not be unduly harsh for the applicant as a highly educated and able person to return to live and work safely in some other cities of the Philippines away from her home town.

20. As for the remaining Ground (e), as it was the duty of the applicant to present properly authenticated documentary evidence to the Board, and in the absence of such in the case of the alleged report of the Barangay police captain, the Board was entitled to express its doubt over its evidential value with good reasons including the facts that it is written in English, not on any form of official letterhead and does not contain any distinguishing marks or seal, and while the applicant at the hearing before me did produce another copy of what she claimed to be the original of that report, a close examination thereof shows that it is no more authentic than the previous one, nor does it advance her case any further, and I can see that those doubts of the Board over this document still remain valid.

21. In the premises and for these reasons, I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and accordingly I refuse her leave application.”

8.  The applicant’s Notice of Appeal dated 11 April 2018 raised the following grounds of appeal:

(1)   The applicant’s enemies are really politically influential and connected with the NPA.  In the Philippines, there is still no functioning judicial system and no reforms or means of redress that can really protect the citizens and ensure their safety.

(2)   There has been is a failure to consider the concept of extended acquiescence.

(3)   The Director and the Board cherry-picked the COI to support their conclusions.  The COI did not reflect the real situation, such as presence of domestic violence and lack of government protection.

(4)   The Barangay Captain Document is an original document, and is authentic.  It can prove the risk faced by the applicant upon being refouled to the Philippines.

9.  The applicant’s written submission essentially repeated the grounds in the Notice of Appeal.  In her oral submission, she stated that the Barangay Captain Document was a certified copy obtained from the authority in the Barangay district.  She also asked to be allowed to stay in Hong Kong as she would be in danger upon return to the Philippines.

10.  Ground (1) is directed at [17] of Form CALL-1.  This Court had repeatedly emphasised that evaluation of evidence, including COI condition, and assessment of risk are matters for the Director and the Board, who are the primary decision makers.  Merely disputing the Director’s or the Board’s findings on the evidence or asserting the existence of harm and risk, without pinpointing any error in law or procedure or procedural impropriety, will not amount to a ground for judicial review.  There is no merit in this ground of appeal.

11.  Ground (2) is also unarguable.  The concept of extended acquiescence is irrelevant in light of the Board’s rejection of the applicant’s claim that her creditors were politically influential, and had harmed her family members and issued threats to harm her. 

12.  Ground (3) is directed at [16] of Form CALL-1, and is in substance a repetition of Ground (b) of the grounds for judicial review (see [6] above).  For the reasons stated in [9] above, we agree with the Judge that the applicant’s challenge to the Director’s assessment of the COI has no merit.  Further, since the Board did not accept that the applicant’s creditors had harmed her family members or issued threat to harm her, it did not have to, and had not proceeded to, consider the COI.  In the absence of any proper basis to challenge the Board’s finding that the risk of harm to the applicant at the hands of her creditors to be extremely low upon her return to the Philippines, the Director’s assessment of the COI is of no relevance.  We see no merit in this ground of appeal.

13.  Ground (4) is related to [20] of Form CALL-1 and is a repetition of Ground (e) of the grounds for judicial review (see [6] above). The Board had referred to features in the Barangay Captain Document that gave cause for concern as to its authenticity.  These include the document was written in English, not made out on official letterhead, and did not bear any distinguishing marks or seal.  These are matters that the Board was entitled to take into account when assessing the authenticity of the document.  It was also open to the Board to conclude on these considerations that there were doubts as to the genuineness of the document, and to refuse to place weight on it.  The applicant has not put forward any substantive point that can point to error in the Board’s assessment of this piece of evidence.  Although the applicant asserted in her oral submission that the document she adduced was a certified copy, there was no evidence in support.  There is, in the circumstances, no proper basis on which the court can interfere with the finding of fact made by the Board.  Ground (4) is not arguable.

14.  For the reasons given above, there are no grounds for disturbing the Judge’s rejection of the grounds put forward for the intended judicial review.  We agree with the Judge that the intended judicial review is not reasonably arguable and has no prospect of success, and leave to apply for judicial review should be refused.  Accordingly, we dismiss the appeal.