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HCAL196/2018
[2018] HKCFI 2412
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 196 of 2018
BETWEEN
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Esquillo Riah Mae Ordiz |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office
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Putative Respondent |
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and |
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Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s Decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge Josiah Lam:
Leave to apply for judicial review be refused.
Observations for the Applicant
Background
1. The Applicant is a national of the Philippines. She is now aged 37 (DOB: 10 June 1981).
2. The Applicant claimed she would be harmed or killed by her ex-byfriend Joel. She suspected Joel was a member of the New People’s Army (“NPA”).
3. The Applicant met Joel in 2000. They did not get married but had three children between them from 2001 to 2008.
4. Joel became abusive towards the Applicant in 2007. The Applicant left him for a while. They got back together in 2008.
5. In late 2008, Joel threatened to kill the Applicant.
6. The two got separated between 2009 and 2011 when the Applicant went to work in Saudi Arabia. She returned to the Philippines in early 2011 and was reunited with Joe.
7. On 23 November 2011, Joel assaulted the Applicant and threatened to kill her again. The Applicant took the children with her to leave Joel. She went back to live with her parents. She reported the matter to the Barangay Captain.
8. The Applicant came to Hong Kong to work as domestic helper in March 2012.
9. The Applicant said that while she was in Hong Kong, Joel called her on a number of occasions. He threatened to kill the Applicant if she returned to the Philippines.
10. The Applicant's employment contract was terminated prematurely in August 2012. She changed her phone number and had no further contact with Joel.
11. The Applicant had a monetary dispute with the employment agency in Hong Kong. She was allowed to stay here temporarily to deal with the dispute. It was finally settled on 25 January 2013. However, the Applicant did not leave accordingly. She feared Joel would kill her if she returned to the Philippines.
12. The Applicant began overstaying in Hong Kong from 2 February 2013. She surrendered to the Immigration Department two years and eight months later on 20 October 2015.
13. In May 2016, while the Applicant was in Hong Kong she learnt from her mother that Joe brought some men to her mother’s home to look for her on 11 March 2016. They were armed and dressed as the New People’s Army. Joel threatened the Applicant's mother that he would kill the Applicant if he found her.
14. The Applicant believed internal relocation was not viable. She presumed Joel had joined NPA. The Applicant said there were NPA members everywhere in the Philippines and they could find her easily.
15. The Applicant said the Philippines police could not protect her because she lived in a village far away from the police station. Joel might come to kill her any time.
16. In the ensuing two-tier screening process here, 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 the Applicant’s claim 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 (BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4].
17. On 8 February 2018, the Applicant applied for judicial review.
Timeline
18. Things happened in this order: –
| 2012-3-23 |
The Applicant came to Hong Kong to work as domestic helper. Her employment contract was terminated on 18 August 2012. |
| 2013-2-2 |
The Applicant began overstaying in Hong Kong. |
| 2015-10-20 |
The Applicant surrendered to the Immigration Department. |
| 2016-6-1 |
The Applicant filed a non-refoulement claim. |
| 2016-12-9 |
The Director refused the Applicant’s claim with respect to all the four applicable grounds: (i) torture risk, (ii) persecution risk, (iii) BOR3 risk and (iv) BOR2 risk. [“the Director’s decision”] |
| 2017-9-29 |
The Applicant appeared before the Board for appeal. |
| 2018-1-19 |
The Board dismissed the Applicant’s appeal with respect to all the four applicable grounds. [“the Board’s decision”] |
| 2018-2-8 |
The Applicant applied for leave for judicial review. |
Respondent/Interested party
19. 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.
20. In Re Moshsin Ali, the Court of Appeal states that “the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”[5]
21. In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Adjudicator as respondent and the Director as interested party.
22. The Adjudicator was not acting in his personal capacity. He represented the Board. In court, the Applicant agreed to change to sue the Board in lieu of the Adjudicator. Thus, the Board is the putative respondent; the Director is the putative interested party.
The Director's decision
23. The Director did not accept the Applicant faced any risk that warranted non-refoulement protection. He also considered reasonable state protection and internal relocation were available to the Applicant in any event. On 9 December 2016, the Director refused the Applicant's claim with respect to all the four applicable grounds: torture risk, persecution risk, BOR2 risk and BOR3 risk.
The Board's decision
24. The Applicant appealed to the Board. The Adjudicator interviewed the Applicant on 29 September 2017.
25. The Adjudicator found a number of inconsistent and unconvincing features in the Applicant's allegations.[6] He also found there were strange features in the supporting documents submitted by the Applicant. For example, the purported age on the certification of spousal assault and the medical record related to the alleged incident on 23 November 2011 both recorded the same age but that did not accord with the Applicant's actual age then. The Adjudicator did not accept it was a mistake by the Applicant or the recorders. He considered the documents were created by some measures to support the Applicant's non-refoulement claim. The Adjudicator was not inclined to attached weight to the documents.[7]
26. The Adjudicator was prepared to accept that Joel had been abusive towards the Applicant. However, Joel had not caused serious injuries to the Applicant and had not contacted the Applicant for a long time.[8]
27. The Adjudicator did not accept that on 11 March 2016 Joel came with some NPA people to threaten the Applicant’s mother that he would kill the Applicant.[9]
28. The Adjudicator referred to relevant country-of-origin information ("COI"). He concluded reasonable state protection and internal relocation were available to the Applicant.[10]
29. On 19 January 2018, the Adjudicator refused the Applicant's claim with respect to all the four applicable grounds: torture risk, persecution risk, BOR2 risk and BOR3 risk.
Grounds of judicial review
30. In her affirmation, the Applicant complained the Adjudicator unlawfully fettered his discretion; acted in a procedurally unfair manner; rendered unreasonable or irrational decisions; failed to meet the greater care and duty owed to a self-represented claimant.
31. The Applicant accused the Adjudicator failed to make sufficient inquiry; failed to consider updated or relevant COI; took into account outdated cases and irrelevant information; considered information not officially recognised or simply hearsay; cherry-picked information; failed to evaluate and make a finding of fact as to whether there existed in the Philippines a consistent pattern of gross, flagrant or mass violations of human rights; failed to call for psychological or psychiatric reports; failed to properly consider the issues of state protection and state acquiescence; applied the wrong standard of proof.
32. The Applicant mentioned she was not legally represented for appeal to the Board. She complained she was given the appeal bundle only a few days before the Board hearing. As such, she did not have sufficient time to prepare for the appeal due to language problem and lack of legal representation. The Applicant said she was confused of what happened. She complained the Adjudicator failed to make appropriate arrangement.
33. Although the Applicant did not name the Director as respondent but only as interested party, she accused the Director decided on BOR2 risk without screening.
Court hearing
34. The Applicant requested a hearing. It took place on 5 July 2018. The Applicant was in person. A Tagalog interpreter provided service in court.
35. The Applicant said she received the Board's decision late. She applied for legal aid only on 30 April 2018. The Director of Legal Aid refused her application on 10 May 2018. She intended to appeal and she was waiting for a letter from her mother concerning the threats she had received. The Applicant asked for the current proceeding to be adjourned until the legal aid matter was settled.
36. The Board's decision was sent to the Applicant on 19 January 2018. The Applicant failed to satisfy this court that she really received the Board's decision late. She only applied for legal aid on 30 April 2018. The Director of Legal Aid refused her application on 10 May 2018.
37. The Applicant had caused her own delay in applying for legal aid. By the time of the hearing, the Applicant had not taken out any appeal against the legal aid refusal. There was no indication she would get legal aid eventually. I refused to adjourn the case and thus proceeded with the Applicant's application for leave for judicial review.
38. The Applicant said a lawyer helped her to prepare Form 86 and the affirmation. She confirmed all the grounds of judicial review were in the affirmation.
39. The Applicant also confirmed she had submitted all the proofs she had to the Director and the Adjudicator for their consideration of her non-refoulement claim.
Discussion
40. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
41. 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’.[11] Nevertheless, it is said in Re Islam Rafiqul: –
“The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision-makers are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.” [12].
42. It was wrong for the Applicant to say the Director had not screened her non-refoulement claim with respect to BOR2 risk. The Director’s decision dated 9 December 2016 was on all the four applicable grounds including BOR2 risk.
43. The Applicant mentioned she was not legally represented for appeal to the Board. She had been represented by the Duty Lawyer Service up to the Director's decision dated 9 December 2016.
44. The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings.[13] The Applicant failed to show how her case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.
45. The Applicant raised her language problem. In the current application, a lawyer helped her to prepare Form 86 and the affirmation. Apparently, the Applicant could find someone to assist her with interpretation/translation and dealing with English documents at all material times. The Applicant had much exaggerated her problem of getting interpretation/translation assistance and handling English documents.
46. The Applicant complained she received the appeal bundle only a few days before the Board hearing.
47. According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’[14] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[15], the Director shall send copies of the hearing bundle to the Board and to the Applicant no later than 5 working days prior to the date of the hearing.
48. The Director stated in his letter dated 5 July 2018 that the appeal bundle was served on the Applicant on 22 September 2017. That was 7 calendar days (or 6 working days) prior to the Board hearing. Thus, the bundle was served on the Applicant in time.
49. The appeal bundle would consist mostly of documents that had been seen or submitted by the Applicant during the first-tier screening of her claim. The Applicant's case was not difficult. There was no evidence to show the bundle was difficult or voluminous.
50. A few days certainly were not a long period but could still be sufficient for reasonable and diligent preparation on the part of the Applicant. The Applicant failed to show she really needed more time to prepare for her appeal. She had not complained to the Adjudicator or asked for adjournment during the appeal hearing.
51. The Applicant said she answered all the questions honestly in the Board hearing.[16] That would mean she knew well what was asked and how to answer. She was not confused.
52. The Adjudicator found reasonable state protection was available to the Applicant in any event. Apparently, he was satisfied there was no state acquiescence of any kind.
53. The Adjudicator did not accept Joel would pose any real risk to the Applicant. Therefore, it was not necessary for the Adjudicator to call for psychological or psychiatric reports or to make a finding of fact as to whether there existed in the Philippines a consistent pattern of gross, flagrant or mass violations of human rights.
54. There was no evidence the Adjudicator cherry-picked information or took into account outdated cases/irrelevant information/information not officially recognised or simply hearsay.
55. There was also no evidence the Adjudicator applied the wrong test of proof.
56. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding, conclusion and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate her case. The Adjudicator was acquainted with the facts of the Applicant's case. He considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim. None of the Applicant’s complaints is substantiated.
Conclusion
57. The Applicant's complaints are not reasonably arguable. She has no realistic prospects of success in the sought judicial review. I therefore refuse to grant her leave for the review.
Dated 20th day of November 2018
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(Alan Ngan)
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:
If leave has been granted, the Applicant or his solicitors must: |
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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)). |
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Sent to the Applicant on 20/11/2018
Esquillo Riah Mae Ordiz
Applicant’s ref. no:
Nil. |
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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 20/11/2018
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 5600/16/12/247/F305
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1820/16 (formerly RBCZ 11989/16)
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] CACV 54/2018, para 45.
[6] The Board's decision, paras 50-60.
[7] Ibid., paras 61-64.
[8] Ibid., paras 65-66.
[9] Ibid., para 67.
[10] Ibid., paras 68-88.
[11] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[12] CACV 219/2018 [2018] HKCA 570, para 14(1).
[13] CACV 284/2017 Re Paswan Shibu Lal, para 21.
[14] The ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’ was issued by the Chairperson of the Board pursuant to section 16 of Schedule 1A to the Immigration Ordinance, Cap. 115 of the Laws of Hong Kong.
[15] The ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’ was issued by the Chairperson of the Board, who had been in her personal capacity delegated by the Chief Executive with the authority under Article 48(13) of the Basic Law of the Hong Kong Special Administrative Region to determine the practice and procedure of the Administrative Non-refoulement Claims Petition Scheme.
[16] The Applicant's affirmation, Point 5 on page 17.
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