HCAL630/2017
[2018] HKCFI 459
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 630 of 2017
BETWEEN
Gorospe Mary Angeline O
Applicant
and
Torture Claims Appeal Board /
Putative
and
Director of Immigration
Putative
Application for Leave to Apply for Judicial Review
Following;
Order by The Honourable Mrs Justice Campbell‑Moffat :
Leave to apply for Judicial Review be refused .
Observations for the Applicant:
Procedural history
1. The Applicant entered Hong Kong in 1994 and worked as a foreign domestic helper until July 2001, when her employment contract was prematurely terminated. She did not thereafter depart from Hong Kong and therefore overstayed. On 3 November 2009, she was arrested for overstaying and on 14 November 2009, was released on recognizance.
2. The Applicant originally made a torture claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (‘the Convention”) in 2009, which was rejected by the Director of Immigration (“the Director”) on 25 July 2011. Her appeal against that decision was refused by the Adjudicator of the Torture Claims Appeal Board (“the TCAB”) on 16 August 2011. The Applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 7 March 2014. She was notified by letter dated 13 November 2015, that her claim for non-refoulement protection would be considered by the Director under the Unified Screening Mechanism, save for her torture claim under the Convention, which had already been adjudicated. Her claim was therefore considered under Article 3 (“BOR 3”) and section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“BOR 3 risk”), as well as Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).
3. In considering her application, the Director also considered documentation from 2011, which had been submitted in the original application under the Convention. This included a questionnaire, Duty Lawyer Service submissions, two records of interview and a Notice of Petition. A supplementary claim form was submitted to the Director by the Applicant on 9 December 2015. The Director dismissed her claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 22 April 2016 and by Notice of Further Decision (re BOR 2) on 26 June 2017. She appealed the Decision to the TCAB on 4 May 2016. The Adjudicator of the TCAB, Ms Jane Curzon Lo, heard her on 9 August 2017. She was unrepresented but had the benefit of an interpreter. The Adjudicator refused her appeal on 25 August 2017.
4. The Applicant filed a notice of application by way of a Form 86, on 18 September 2017, seeking leave to apply for judicial review and did not request an oral hearing. This leave application was therefore considered on the papers.
Background
5. The Applicant was born in Yagyagan Sablan Benguet, Philippines. In 1983, she married and moved to live with her husband in the Isabela region. It was only at this stage that the Applicant says that she became aware that her husband was a member of the New People’s Army (“NPA”) rebel group. The Applicant wanted to leave him but did not do so. Her husband wanted her to join the NPA and when she refused she was beaten by him. Her injuries resulted in bruising for which she did not seek medical help. She says she was threatened by other NPA members but not physically abused by them. Between 1983 and 1990, the Applicant says that she was beaten regularly by her husband and he also threatened to kill her, however she took no formal action about these beatings or threats other than to report the matter once to a village councillor. On each occasion she received bruises but no more serious injury. In 1989, the couple had a daughter. In 1990 the Applicant left her husband and went to Cagayan Valley to live. On one occasion she met her husband by accident in the street when he beat her further and also threatened to kill her. This incident took 10 minutes after which he left. On this occasion as well, the Applicant did not seek medical treatment. This was the last time that the Applicant saw her husband. Between 1990 and 1994 she was the subject of no further threats or assaults whilst in the Philippines. In 1994, she travelled freely to Hong Kong on her Philippines passport where she took up employment as a foreign domestic worker until her contract was terminated.
The Non-refoulement Claim
6. The Applicant’s claim was assessed on all applicable grounds (although at different times) both under the Convention and under the Unified Screening Mechanism (“USM”), which are:
i. risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”);
ii. risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of the ICCPR (“BOR 3 risk”);
iii. risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”); and
iv. 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 of the ICCPR (“BOR 2 risk”).
Decision and Further Decision of the Director
7. The Director analysed the Applicant’s claim on all applicable grounds on three separate occasions as outlined above. He considered a wide range of documentary evidence and had several interviews with the Applicant. He correctly set out the law, key legal principles and made reference to relevant materials. The Applicant was given every opportunity to state her case and to supplement the evidence before the Director, which she did. In coming to his decision to reject her claim under the various heads, he acted reasonably and explained his decision on the merits in a clear and intelligible manner.
Decision of the Adjudicator
8. The Adjudicator also analysed the Applicant’s claim on all applicable grounds. She arranged for an oral hearing and treated the appeal as a rehearing. She correctly set out the law and key legal principles and considered all relevant materials including the additional information provided at the hearing on 9 August 2017. She rejected the Applicant’s appeal and explained in detail her reasoning. She did not find that there was a genuine and substantial risk of the applicant being subjected to death under BOR 2, or ill treatment under BOR 3, if she were to be returned to the Philippines; state protection was available and internal relocation was possible. Importantly, the Adjudicator found that this was a private matter between the Applicant and her husband and therefore there were no grounds for an application under the Convention.
Leave to Apply for Judicial Review
9. Judicial review is not a rehearing of the merits of the Applicant’s original application for refugee status. This is an application to apply for leave to judicially review the decisions of the Director of Immigration and the Adjudicator. The Applicant must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by those bodies or persons when dealing with her application in order to obtain leave to judicially review them.
Grounds of Review
10. The Applicant submitted Grounds of Review which are clearly not her own document and which on occasion refer to incidents which are wholly unrelated to her case. To the extent, I am able to do so, I have elicited the following relevant submissions.
11. It is submitted by the Applicant that the Adjudicator and the Director failed to carefully consider the Applicant’s claim. There are no particulars provided for this submission but in any event I am satisfied that the Director and Adjudicator did consider the Applicant’s case fairly based upon the evidence before them and the relevant available material as well as the facts as they found them to be. This ground is not arguable.
12. The Applicant also submitted that she did not receive any further correspondence from the Director in respect of a BOR 2 claim. She did not understand the legal terminology of the claim and was not given the opportunity to submit any further grounds and attend an interview. A letter dated 8 June 2017 was sent to the registered address of the Applicant whose duty it was to inform the Director of any change of address. She has not suggested that she had in fact changed address at the material time. The BOR 2 claim was dealt with on 26 June 2017 prior to the hearing before the Adjudicator, at which time it was open to the Applicant to raise any issue arising from that claim with the Adjudicator, and to present any additional materials in support of that claim. The specific matter was raised with the Applicant by the Adjudicator and she agreed to continue on the hearing date. In any event, the Adjudicator dealt with the appeal under BOR 2 fully and gave reasons for her decision. This ground also fails to show an arguable case.
13. The Applicant was not provided with legal representation before the TCAB. The Applicant submits that she was treated unfairly by reason of the fact that she was not provided with legal representation before the Adjudicator. The fact the Applicant was unrepresented in her appeal has not been shown by her to be procedurally unfair. The duty lawyer scheme will continue to represent applicants in their appeal if they are of the view there is merit in their cases. There is no requirement to represent all such appellants regardless of merit. Their assessment is on a case-by-case basis. As the Applicant was absent, I am unable to ascertain if she did apply to the scheme for legal representation at that stage and whether they refused her application. If so, on what grounds did they refuse it? Nevertheless, there was an opportunity for the Applicant to make representation to the Adjudicator about this issue and she did not do so. This ground is not reasonably arguable.
14. The Applicant was denied legal representation for leave to judicially review the decisions of the Director and the Adjudicator. No application has been made to the Director of Legal Aid (“DLA”) for legal assistance for this review although, it is clear from the grounds of review provided that the Applicant has received assistance from someone. It was open for the Applicant to apply for legal representation just as it was open to the DLA to refuse such representation if he chose to do so on the merits. There is no procedural unfairness if the Applicant chose not to apply in a timely fashion for the purposes of this application or the DLA chose to refuse such an application (if she had made one), so long as that decision was carried out properly on the merits. This ground is not arguable.
15. The Applicant submits that she was not provided with an interpreter. The record shows that was not the case. This ground must fail.
16. The Applicant submits that the Director and Adjudicator ignored COI information. This is not the case. Relevant COI information was considered. At no stage had the Applicant resorted to state agencies in any form. There was ample evidence to indicate that if she had done so, there was no reason to believe, she would not have been protected. The Applicant did not indicate what, if any, material the Director and Adjudicator should have considered.
17. The Applicant submitted that the Adjudicator had been irrational in that she found that the allegations of the Applicant reached the “minimum level of severity” under BOR 3, which is inconsistent with her finding that her level of risk if returned to the Philippines was low. In fact, paragraph 22 of the Decision of the Adjudicator refers to the claim made by the Applicant which, if proved, would amount to a “minimum level of severity”. However, paragraph 23 refers to the Adjudicator’s view of the facts and to her assessment of risk of being subject to that “minimum level of severity” , which the Adjudicator found to be low. There is no irrationality in that regard.
Conclusion
18. I have considered the papers, grounds and submissions carefully. I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. The Director and Adjudicator considered all relevant criteria, gave the Applicant a reasonable opportunity to state her case and enquired into that case appropriately. There is no criticism of their determinations, which were open to them on the facts and eminently reasonable.
19. In my judgement, there is no reasonably arguable basis upon which the Applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if she were to be granted leave. I therefore refuse leave for judicial review.
Dated 20th day of March 2018.
(Queenie Mak)
for Registrar, High Court
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 :
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);
Sent to the ApplicantGorospe Mary Angeline O
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 20/3/2018Torture Claims Appeal Board /Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.: Director of Immigration Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)
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)).
Form CALL-1