RE MANIBOY WYLLENN MONTERO

CACV 240/2018

[2018] HKCA 707

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 240 OF 2018

(ON APPEAL FROM HCAL 1067/2017)

-------------------------------------------

-------------------------------------------

___________________

J U D G M E N T

___________________

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

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) dated 15 June 2018 in HCAL 1067/2017 refusing leave to the applicant to apply for judicial review. The applicant is a national of the Philippines. She arrived in Hong Kong on 5 September 2003 with permission to work as a domestic helper until the expiration of her last employment contract on 5 September 2005. The applicant did not depart and overstayed until she was arrested by police on 7 October 2016. After she was referred to the Immigration Department for investigation, she lodged her non-refoulement claim on 17 October 2016 on the basis that if she returned to the Philippines, she would be harmed or killed by her abusive husband or by people from her employment agency for failing to repay the loan made by the agency to her.

2.  By Notice of Decision dated 24 May 2017, the Director of Immigration (“the Director”) decided against the applicant’s claim.  Taking account of all the relevant circumstances, the level of risk of harm from the applicant’s husband or the debt collectors was assessed to be low.  The low intensity and infrequency of past ill-treatment from the husband and the debt collectors in the past was indicative of a small future risk of harm upon her return to Philippines. The availability of state protection and the possibility of relocation would further lower or negate the level of risk of ill-treatment.  The decision covered BOR2 risk, BOR 3 risk, torture risk, and persecution risk. 

3.  The applicant appealed to the Torture Claims Appeal Board (“the Board”).  After an oral hearing on 1 December 2017, the Board dismissed the appeal on 1 December 2017. The Board found at [52] to [57] of its decision that the failure on the part of the applicant to raise the non-refoulement claim in a timely manner and her unconvincing and inconsistent evidence around the issue of debt problems and the threats posed by her husband caused concern about the credibility of her case.  On the totality of the evidence, the Board found that the applicant faced no genuine and substantial risk of harm or ill-treatment if refouled and her claims under all applicable grounds were rejected.

The Judge’s decision

4.  On 13 December 2017, the applicant sought leave to apply for judicial review in HCAL 1067/2017.  The intended judicial review was in respect of the Director’s and the Board’s decisions.  In the applicant’s supporting affirmation filed on the same day, she put forward the following grounds for her intended challenge:

(1)   Procedural impropriety for failure to apply the high standard of fairness in the consideration of her claim.

(2)   Error / misdirection in law for failure to consider the psychological impact of the threats against her.

(3)   Procedural impropriety for failure to conduct sufficient inquiry into the relevant COI.

(4)   Irrationality for treating the threats against her as a private or family dispute. 

5.  On 15 June 2018, the Judge gave his decision refusing to grant leave to the applicant to apply for judicial review.  In the CALL-1 Form, after summarizing the background of the case, as well as the decisions of the Director and the Board, the Judge gave the following reasons at [11] – [13] for his refusal to grant leave:

“11. These are all very broad and vague assertions of the applicant without any particulars or specifics or elaboration as to how they applied to her case or how the Director or the Board had erred in their decision, while the Board was clearly entitled to find even on the facts of her own case that her dispute with her husband was a family matter while that with her employment agency over her debt a private one between them. As for the psychological impacts these threats may have on the applicant, as already noted the Board did accept that the applicant was once in an abusive relationship with her husband during their marriage but the fact is that she left him in 2003 and has had no further contact with him since 2005 which was more than 12 years ago, and hence the Board was in my view correct to consider that the applicant no longer faces any real risk of threats from her husband in the circumstances after all these years upon her return to the Philippines. I am simply unable to find any merits or basis in any of these grounds of the applicant.

12. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

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

6.  In the Notice of Appeal filed on 19 June 2018, the applicant in gist put forward the following grounds of appeal:

(1)   The applicant disagreed with the judgment of the Judge.

(2)   There was a lack of high standard of fairness including the lack of language assistance and translation throughout the whole process of claim.

(3)   The applicant had genuine fear for her life, and she did not get the necessary assistance and legal representation for her appeal.

(4)   The applicant wished to bring to the court’s attention that despite the abusive relationship with her husband having ended more than 12 years ago, the psychological impact and her fear had not gone away. 

7.  In the skeleton submissions lodged by the applicant on 20 September 2018, she raised essentially the same grounds as those set out in the Notice of Appeal.

8.  We heard the appeal on 11 October 2018. 

Discussion

9.  We would deal with grounds 1 and 2 together.  As matter of law, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribes that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks means an absolute right to free legal representation at all stages of the proceedings: 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 Zafar Muazam [2018] HKCA 176.  Grounds 1 and 2 have no merit and must fail.

10.  As for grounds 3 and 4, we agree with the findings of the Judge at [11] of the CALL-1 form that the Board was clearly entitled to find, on the facts of the applicant’s own case, that her dispute with her husband was a family matter and her debt problems were also a private matter.  The Judge was justified in finding that as the applicant had had no contact with her husband since 2005, she no longer faced any real risk of harm or threat from him.  We see no merits in grounds 3 and 4.

11.  Having read the materials available before us, we are of the view that the findings of the Board and the Directors, as well as the observations of the judge, are justified.  We do not see any errors of law or procedure in the proceedings before the Director and the Board.  Nor is there any reasonably arguable basis to challenge the fairness of the process.  Determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.  We do not see any reasonable basis to challenge the decisions of the Director and the Board by way of judicial review. Accordingly, we agree with the Judge that leave to apply for judicial review should be refused.

12.  For these reasons, we do not see any prospect of success in the intended application for judicial review.  We dismiss the appeal accordingly.