NG MAGIE VENTURA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2692/2018

[2021] HKCFI 1738

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2692 of 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of the documents only;  or
	consideration of the documents and oral submissions by the Applicant in open court;

Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application for leave to apply for judicial review of the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 27 February 2018 (the “Notice”), the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (the “Board”) dated 19 November 2018 (the “Decision”) and her record of screening interview on 22 February 2018.

2.  The Decision of the Board is reviewable by judicial process but not the decision of the Director in the Notice because there are established statutory procedures of appeal to the Board and the Applicant has invoked those procedures.  The Director’s decisions in the Notice was superseded by the Board’s Decision and is no longer susceptible to judicial review: Re Moshsin Ali[1]. For the benefit of the Applicant, the Court treated her complaints against the Director as directed at the Board also.  The record of screening interview is a transcript of the Applicant’s answers to the questions raised by the immigration officer during the interview.  It is not a decision of any administrative body.  It is not reviewable by judicial review. 

3.  The Applicant is a Philippine national.  She entered Hong Kong as a visitor on 23 December 2014 until 25 June 2015.  She over-stayed thereafter.  She was arrested by the police and referred to the Immigration Department.  On 6 August 2015, she sought non-refoulement protection claiming fear that she will be harmed or killed by her uncle and aunt if returned to the Philippines.

4.  In due course, her non-refoulement claims were assessed on all four applicable grounds available under the Unified Screening Mechanism (“USM”), namely: Torture Risk[2]; BOR 3 Risk[3]; Persecution Risk[4] and BOR 2 Risk[5].  By a Notice of Decision dated 27 February 2018, the Director rejected her claims.  Her appeal to the Board against the decision in the Notice was dismissed by the Board’s Decision dated 19 November 2018.  She sought leave to apply for judicial review of the Board’s Decision.

The Applicant’s case

5.  The following account of the Applicant’s case is mainly based on the information in her non-refoulement claim form which was prepared by her with assistance of the Duty Lawyer Service. 

6.  The Applicant was abandoned by her parents and left to the care of her grandmother.  Her father resides in Hong Kong.  After her grandmother’s death in late 2003, she lived with her uncle and aunt.  She was then 11 years old.  She had to do housework. She was ill-treated and assaulted by her uncle and aunt.  She started an affair with a man in 2009 and gave birth to a daughter on 10 October 2010.  Her boyfriend took the daughter from her two months after she was born and disappeared. 

7.  On 25 February 2013, while she was alone at home, her uncle attempted to rape her.  Fortunately, her aunt returned home.  Her uncle threatened her not to tell anyone of the incident or he would definitely kill her.  She continued living with the uncle and aunt as she had nowhere else to go to.  She dared not report the incident to the police for fear that her uncle and aunt would evict her and she would become homeless.

8.  On or about 18 July 2013, the Applicant was asked by another uncle whether she would wish to visit her father who was in prison.  On the following day, she went to prison to meet her father.  She told him what had happened.  Then, her father arranged for her passage to Hong Kong.  On 23 December 2014, she left her uncle’s and aunt’s home without telling them.  After arriving Hong Kong, she worked at her father’s bar in Yuen Long until she was arrested.

The finding of the Board

9.  The Board found multiple inherent inconsistencies in the Applicant’s evidence which cast doubts about her credibility.  The Board found it incredible that she was attending a school which was one hour away by tricycle from where she was living with her uncle and aunt.  Her evidence regarding the relationship between her mother and father and her contact with her father was inconsistent.  The Board found many aspects of her evidence given in the hearing inherently improbable: such as the reasons why her father left her with her grandmother; that her father was imprisoned for ten years for over-staying in the Philippines is incredible; and that her father having lawfully entered the Philippines was put in prison when he was about to depart.  It found her evidence about the ill-treatment by her aunt vague and lacking in details.  The Board did not accept her evidence about ill-treatment and abuse by her uncle and aunt since she first lived with them in 2003 and that she was almost raped by her uncle in February 2013.  The Board did not accept her evidence that she could not find employment in the Philippines and lead an independent life because she had not completed high school.  It did not accept that the Applicant is at any risk of harm from her uncle and aunt if she is not residing with them; that the Applicant is compelled to resume living with them on her return to the Philippines.  It did not accept that the Applicant’s uncle and aunt had any interest in the Applicant if she returns to the Philippines.  In conclusion, the Board found if the Applicant returns to her home area and does not resume living with her uncle and aunt, she does not face any real chance or real risk of any harm from either of them.  There is no real risk that she would face any of the proscribed forms of harm from them should she return to the Philippines.  On these findings, there is no factual basis to support the Applicant’s claim for non-refoulement protection on any of the four applicable grounds.

Grounds for judicial review

10.  The Applicant filed an 11-page affirmation in support of her application for leave to apply for judicial review.  Her grounds of application revolve around her disagreement with the finding of facts by the Board, procedural unfairness due to lack of legal and language assistance before the Board and correctness of the Country of Origin Information (“COI”).

11.  As for her first complaint, she said that the majority of the documents in the appeal bundle were in English and without translation.  She said that due to lack of understanding on what will happen in the hearing she was confused in terms of what was happening.  In Re Zafar Muazam[6], Re Zunariyah[7], Re Zahid Abbas[8], Re Tariq Farhan[9], and Re Lopchan Subash[10], the Court of Appeal held that neither the high standard of fairness laid down in Sakthevel Prabakar v. Secretary for Security[11] nor the judgment of FB v. Director of Immigration[12] prescribes that  a claimant of BOR 2 or BOR 3 or persecution risks has an absolute right to free legal representation at all stages of the proceedings. 

12.  Similarly, a claimant does not have absolute right to free language assistance at all stages of the proceedings.  In Re Karamjit Singh[13], the Court of Appeal adopted the rationale of the Court of First Instance that it could not have been the intention of any authority laying down the principle of a high standard of fairness that the principle would include provision of interpretation service at any time an applicant desired or required.  It must be borne in mind that it was the Applicant’s choice to come to Hong Kong where the official languages are Chinese and English.  In the circumstances, she has to live with or cope with her language disability.  She cannot expect to have the luxury of any documents to be fully translated into her first language for her benefit.  She has to find assistance herself from among her friends and her ethnic community.  Indeed, the Applicant was able to file an adequately well written affirmation in English herself.

13.  The Applicant had the benefit of legal representation by the Duty Lawyer Service and interpretation services of a qualified interpreter at the screening interview and in presenting her case to the Director.  She also had the services of a qualified interpreter at the oral hearing before the Board.  Though the appeal bundle is in English, it is basically made up of her non-refoulement claim form, the record of the screening interview and the decision of the Director in the Notice, including the COI.  She admitted that she knew what were in the non-refoulement claim form and the record of the screening interview.  The Notice of the Director was issued to her on 27 February 2018.  It was not until 16 August 2018 that the oral hearing was held.  The Notice is in English and, unfortunately, no translation was provided.  She cannot expect these documents to be fully translated for her.   She had in between the issue of the Notice and the oral hearing nearly six months to seek assistance from among her own circle.  Indeed, she had access to interpretation services as reflected in her affirmation and notice of application for leave to apply for judicial review filed in connection with this application which were very well written in English. Also, she could have sought assistance from the interpreter at the oral hearing before the Board.    It lies ill in her mouth to attempt to overturn the result of the hearing on this ground. 

14.  Her complaint about lack of translation of the Decision is frivolous.  The Decision was made after an oral hearing during which she had the benefit of interpretation services.  A translation of the Decision of the appeal which was already made could not change the Decision or the outcome of the appeal.

15.  Taking a global view of the circumstances, nothing amiss arose from the non-availability of legal representation or interpretation in the process before the Board.  Her complaint about lack of legal and language assistance is over-exaggerated.

16.  As for her complaint about the COI being not officially recognized and made up of hearsay, it is incorrect.  The COI relied on by the Director and the Board are all from credible and official sources, including Country Reports on Human Rights Practices for 2016 -  Philippines published by the United States Department of State; The World Factbook, published by United States Central Intelligence Agency; Philippines: Domestic violence, including legislation, availability of state protection and support services for victims; andThe Official Website of The Philippine Commission on Women Violence against Women.  Other than a bald assertion of unreliability and hearsay, the Applicant provided no particulars as to what are untrue, not to mention her failure to provide any publication contradicting these COI.  The Court considered this ground totally groundless.

17.  As for the overall or general complaint about irrationality and unreasonableness in the Board’s finding, these grounds of complaint are against the finding of facts by the Board.  The function of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The court will only scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[14]. 

18.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the burden of proof and standard of proof, the law and key legal principles relating to the four applicable grounds under the USM; and observed a very high standard of fairness.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  It was on that basis that the Board found there was no factual basis to support the Applicant’s claims for non-refoulement protection under any of the four applicable grounds.  The Decision was utterly without fault.  The Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success.

Conclusion

19.  For the above reasons, leave to apply for judicial review is refused.

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

Form CALL-1

[1] [2018] HKCA 549

[2] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[3] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[4] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[5] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[6] cacv 2/2018, (unreported) 23 March 2018

[7] [2018] HKCA 14

[8] [2018] HKCA 15

[9] [2018] HKCA 17

[10] [2018] HKCA 37

[11] (2004) 7 HKCFAR 187

[12] HCAL 51 of 2007, (unreported) 5 December 2008

[13] CACV 78/2018; [2018] HKCA 460

[14] [2018] HKCA 524 at para 14(1)