AQUINO ESMINIA RAMENTO v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 402/2018

[2020] HKCFI 793

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 402 of 2018

     Application for Leave to Apply for Judicial Review

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

Following:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 54-year-old national of the Philippines who last arrived in Hong Kong on 27 October 2013 with permission to work as a foreign domestic helper until the expiration of her employment contract on 27October 2015 when she did not depart, and instead overstayed until 23 November 2015 when she surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if she returned to the Philippines she would be harmed or killed by her husband who had accused her of having a boyfriend in Hong Kong.  She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Bacarra, Ilocos Norte, the Philippines.  After leaving school she married her husband and raised two children, and in 1990 she started to work as a foreign domestic helper first in Singapore, and later in 2001 in Hong Kong.

3.  In October 2015 when she was finishing her then employment contract, she telephoned her husband to inform him that she would return home in the Philippines beforelooking for her next employment, but her husband then accused her of having a boyfriend inHong Kong and warned her not to return to their home or else he would kill her.  Thereafter he refused to answer any of her calls.  Later she was informed by her children that her husband had left home and that his whereabouts was unknown, but as she still feared that he would indeed kill her upon her return to the Philippines, she therefore overstayed in Hong Kong, and upon her subsequent surrender to the Immigration Department, she raised her non-refoulement claim, for which she completed a Non-refoulement Claim Form on 24 April 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

4.  By a Notice of Decision dated 31 May 2017 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel,inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 risk”),and 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”).

5.  In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her husband to the Applicant upon her return to the Philippines as low due to the low intensity and frequency of past ill-treatment from her husband, that there was no reliable evidence of any real intention on the part of her husband to harm or kill her after making just a verbal threat on the telephone,that in any event it was a domestic dispute without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in the Philippines with a large population of 100 million people spread across a vast territory of more than 300,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with work experience to move to other part of the Philippines away from her home district in large cities such as Manila where it would be difficult if not impossible for her husband to locate her.

6.  On 12 June 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which she attended an oral hearing on 23 February 2018 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 28 February 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

7.  In its decision the Board found the Applicant’s claim even on her own case at the highest that one single verbal threat on the phone from her husband did not amount to any real or substantial risk under any of the applicable risks that would warrant international protection, that at worst it was a domestic dispute that state/police protection would be available to the Applicant upon her return to the Philippines, and concluded that she has failed to establish any genuine or substantial risk of harm that her claim for non-refoulement protection failed on all applicable grounds.

8.  On 12 March 2018 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her supporting affidavit of the same date she put forward the following grounds as summarized for her intended challenge:

 (1)  that the adjudicator failed to meet the high standards of procedural fairness requiredof the tribunal in failing to provide representation for the Applicant at her oral hearing before the Board;

 (2)  that the adjudicator failed to apply high standards of fairness by taking account of irrelevant considerations in assessing the Applicant’s claim rendering a refusal decision;

 (3)  that the adjudicator gave no proper reasons for his decision after citing only the history of the matter and the materials available before him;

 (4)  that the adjudicator failed to take account of all the COI material in the hearing bundle in his determination of the Applicant’s claim; and

 (5)  that the adjudicator did a shoddy job, was intentionally rude and inconsiderate, and failed miserably.  

9.  These are however just broad and vague assertions of the Applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to her case or how the Board or the adjudicator had erred in the decision, or in what way did the adjudicator fail to apply high standards of fairness in his assessment of her claim, or how did the adjudicator fail to take into account relevant COI in his determination of her claim or being intentional rude and inconsiderate towards her at her hearing before the Board.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant.

10.  As for her complaint of not being provided with legal representation for her appeal before the Board, the Court of Appeal has already held that neither the high standards of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have 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.

11.  The Applicant already had the benefit of legal representation in presenting her case to the Director, and was able to give evidence and answer to questions raised of her claim from the adjudicator during her oral hearing before the Board without any difficulty or problem. Given the straightforward facts and nature of her claim, and in the absence of any evidence to suggest that her case had been misunderstood or misjudged by the adjudicator, I do not find this ground reasonably arguable for her intended challenge.

12.  Regarding her complaint of the adjudicator’s failure to give proper reason for his decision other than just citing the history of her case and the materials before the Board, it is plainly incorrect for the Applicant to so claim, as the adjudicator did clearly in paragraphs 37 – 62 of his decision fully and properly explain his findings and reasons for his decision, and a careful examination thereof discloses no error in his such findings. As such I do not find any basis or merit in this complaint of the Applicant either.

13.  As a matter of fact, the Applicant did agree as much in paragraph 8 of her affidavit:

“ … The adjudicator handed down his written decision on 28 February 2018, in which he provides a very comprehensive and considered analysis of the information and issues before him. He correctly sets out the relevant rules and principles that he was to apply in determining the applicant’s claim …”

14.  Her complaint that her account of her experiences and concerns did not feature in the adjudicator’s analysis that they did not amount to torture is clearly wrong given what she had told the adjudicator during her oral hearing about the husband’s threats as recorded in paragraphs 26 – 34 of the decision, upon which the adjudicator clearly went on to properly analyze them before arriving at his conclusion, and of which I do not find any fault at all.      

15.  As has been repeatedly emphasized by the Court of Appeal, evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

16.  The fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of the Philippines, a decision also confirmed by the Board,there is simply no justification to afford her with non-refoulement protection in Hong Kong:see TK v Jenkins & anor [2013] 1 HKC 526.

17.  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.

18.  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.

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