RE DELA CRUZ, JULIET GUERRERO

CACV 272/2021

[2021] HKCA 1533

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 272 OF 2021

(ON APPEAL FROM HCAL 2656 OF 2018)

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JUDGMENT

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Hon Lisa Wong J (giving the Judgment of the Court):

The appeal

1.  This is an appeal by Dela Cruz, Juliet Guerrero against the order made by Deputy High Court Judge Bruno Chan (“Judge”) on 13 May 2021 (“Judge’s Decision”), refusing to grant her leave to apply for judicial review.  The intended application for judicial review sought to quash the decision of the Torture Claims Appeal Board (“Board”) given on 8 November 2018 (“Board’s Decision”), which dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”) of her non-refoulement claim (“NRF Claim”).  Such rejection was embodied in, and communicated to the applicant by, a notice of decision dated 27 March 2018 (“Director’s Decision”).

Basis and allegations in support of NRF Claim

2.  The basis of the NRF Claim made by the applicant, a national of the Philippines now aged about 45, is a fear of being harmed or even killed by harmed or killed by (1) her former boyfriend (“Joselito”) for not returning to him the money that he had given her before their breakup and/or (2) Joselito’s stepbrother (“Jonathan”) and/or stepsister for not surrendering Joselito’s house to them.

3.  The circumstances giving rise to such fear have been set out in detail in paragraph 7 of the Director’s Decision and paragraphs 11 to 73 of the Board’s Decision and in gist in [2] to [5] of the Judge’s Decision rendered in the Form CALL-1 dated 13 March 2021, [2021] HKCFI 1364 (“Form CALL-1”).

4.  Briefly:

(1)  The applicant and her husband separated in 2002 but have not formally divorced.

(2)  In 2014, the applicant became romantically involved with Joselito.  They never met in person and dated online as he was in Korea.

(3)  From 2009 to 2012, the applicant lived at Joselito’s house in Olongapo City.  He sent her money to support her daily living and to have her marriage annulled so that they could marry.

(4)  The applicant was initially on good terms with Jonathan and Joselito’s stepsister.  The relationship turned sour when she stopped lending them money, whereupon they disputed Joselito’s ownership of the house and demanded the applicant to leave.  The brothers argued.  Joselito asked the applicant to stay at, and hold onto, the house by giving her a power of attorney.

(5)  Jonathan (who had claimed to be with the New People’s Army and had a gun) and the stepsister started to harass the applicant.  Jonathan once came to the house with 2 unknown men to beat her up.  Another time, she found the windows of the house broken.  The applicant complained about both incidents to the police which just said they would investigate.  In revenge, Jonathan and an associate of his raped the applicant. 

(6)  Upon Joselito’s request, the applicant sought legal advice about his house.  She lodged claims against Jonathan at the Olongapo City Court and spent all her savings on the litigations from 2009 to 2012.

(7)  Throughout this time, Jonathan and the stepsister never ceased harassing the applicant.

(8)  In 2012, the applicant could not take the pressure anymore.  She applied to work in Hong Kong.  Before she left, she withdrew all cases against Jonathan as the lawyer had advised her that she could not leave the country with pending court cases.

(9)  The applicant pawned Joselito’s motorcycle to raise money to pay the employment agency’s fees.  After she came to Hong Kong, she let Joselito’s house without telling him.  Indeed, she had not disclosed to Joselito her intended move to Hong Kong. 

(10)  Joselito nevertheless traced her here 3 months later.  They broke up.  He demanded her to repay all the money that he had sent her before, failing which he would not let her live peacefully.

(11)  Joselito has the details and addresses of the applicant’s children.  He seems able to find her no matter how many times she changes her phone number.  To humiliate her, he sent indecent pictures of the applicant to her family and told her relatives about the rape.  The applicant is too ashamed to go back to the Philippines.

(12)  A stranger went to the applicant’s mother’s house about 5 times to ask about her (including her whereabouts) in 2014/2015.  She also constantly received messages threatening to kill her from unknown telephone numbers.

Overstaying in Hong Kong and lodgment of NRF Claim

5.  The applicant arrived in Hong Kong on 4 July 2013 to work as a foreign domestic helper.  Her contract was prematurely terminated on 23 June 2015. Instead of leaving within 2 weeks, the applicant overstayed since 8 July 2015. She surrendered to the Immigration Department on 4 November 2015.  She raised the NRF Claim by written representation dated 31 March 2016.  

Director’s Decision

6.  After considering the information provided by the applicant in her Non-refoulement Claim Form dated 9 February 2018 and at the screening interview on 15 March 2018, during which time the applicant was represented by the Duty Lawyer Service, the Director found the NRF Claim unsubstantiated under any of the applicable grounds for non-refoulement protection: torture risk[1], persecution risk[2], “BOR 2” risk[3] and “BOR 3” risk[4].  In short, the Director did not accept that the applicant would face a genuine and substantial risk of being subjected to ill-treatment from Joselito or Jonathan and further found that reasonable state protection and internal relocation options would be available to negate or lower any such perceived risk.

Appeal to Board and Board’s Decision

7.  The applicant appealed against the Director’s Decision to the Board.

8.  After a rehearing of the NRF Claim on 24 July 2018, at which the applicant testified and answered the Board’s questions through a qualified interpreter, the Board dismissed the appeal on all 4 applicable grounds for non-refoulement protection.  In summary,the Board considered the applicant not a witness of truth who had not told the Board the truth in relation to critical elements of the NRF Claim.  The Board did not accept that the applicant’s husband, Joselito, Jonathan or the stepsister would harm the applicant for the alleged or any reasons if she should return to the Philippines.

Application for leave for judicial review and Judge’s Decision

9.  By a Notice of Application for Leave to Apply for Judicial Review (“Form 86”) issued under HCAL 2656/2018 on 23 November 2018, the applicant applied for leave for judicial review of the Board’s Decision on the following grounds:

(1)  The [Board] had unlawfully fettered its discretion by refusing the applicant’s appeal on the ground that it did not satisfy the requirement.

(2)  The adjudicator acted in a procedurally unfair manner in dealing with the applicant’s appeal.

(3)  The Board’s decision to refuse the applicant’s appeal was unreasonable or irrational in the public law sense or is the result of procedural errors or unfairness.

(4)  the Board failed to meet the greater care and duty owed to a self-represented claimant.

(5)  The applicant was provided with the hearing bundle just 6 days (with an intervening weekend) before the appeal hearing with the majority of documents in English, which gave her insufficient time to prepare for the hearing due to her limited skill in English and being unrepresented.

(6)  Although she answered all the questions honestly, her credibility was found questionable, thus making it an unfair hearing due to lack of care by the Board to make appropriate arrangements in relation to the hearing bundle.

(7)  The Board made the groundless speculation that it is safe for her to return to her country of origin in consequence of relying on sources of news that is not officially recognised or is hearsay or outdated.

10.  After a hearing in open court on 26 January 2021, the Judge dismissed the application for leave for judicial review.  He gave the following reasons in [11] to [18] of the Form CALL-1:

“11. These are however all just broad and vague assertions of the Applicant containing several 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 Board or the Adjudicator unlawfully fetter their discretion or act in a procedurally unfair manner or that the decision was unreasonable or irrational in the public law sense, or what sources of news were not officially recognized or were hearsay or outdated. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for her intended application.

12. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the 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 in their decisions 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.

13. The only other complaint which the Applicant appeared to have made with any elaboration was about the hearing bundle being provided for her only a few days before her appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given her insufficient time to prepare for her appeal.

14. Even if it is true that the hearing bundle indeed came to her late as alleged, and the Applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that the Applicant can clearly read and write some English, and that most of the documents including her NCF, records of her screening interviews and the Director’s decisions should be well familiar to her as they had earlier all been made available to her when she still had legal representation, whilst her NCF was completed on her own instructions with legal assistance, and that at her oral hearing she never raised any issue or requested the Adjudicator for further time to enable her to better prepare for her appeal. Accordingly I do not find anything amiss arising from the hearing bundle for the Applicant in her appeal before the Board.

15. Essentially the Board rejected her claim on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 74 – 106 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, and in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

16. Furthermore, the fact is that it has been established by the Director in her decision that the risk of harm in the Applicant’s claim if true is a localized one and that it is not unreasonable or unsafe for her to relocate to other parts 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.”

Appeal to Court of Appeal - grounds of appeal and submission

11.  The applicant appealed to the Court of Appeal by the notice of appeal filed herein on 13 May 2021, which stated the following grounds of appeal: that she would face hardship if she should return to the Philippines (“Ground 1”); and that the Board made groundless speculations as a result of relying on non-officially recognised or hearsay new and outdated cases (“Ground 2”).

12.  On 3 September 2021, the applicant lodged written submission by which, in purported support of Ground 1, she referred to ST v Director of Immigration (sic)[5] [2014] 4 HKLRD 277, Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531 and R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514 for the trite propositions (1) that high standards of fairness are required in the adjudication of non-refoulement claims (and the rationale for such requirement); (2) that the courts will on judicial review subject such adjudication to rigorous examination and anxious scrutiny to ensure that high standards of fairness have been met; and (3) that the necessary high standards of fairness require the claimant to be given every reasonable opportunity to establish his claim.  She further cited, in purported support of Ground 2, The Council of Civil Service Unions v Minister for Civil Service [1985] AC 374; Pearl Securities Ltd v Stock Exchange of Hong Kong [1999] 2 HKLRD 243 and Michael John Treloar Rowse v Secretary for the Civil Service [2008] 5 HKLRD 217 to show that a decision-maker is under a constitutional duty to act fairly and to follow minimum standards of procedural fairness in the decision-making process.

13.  The applicant did not attend the hearing of the appeal on 12 October 2021.  We shall determine her appeal by considering the written material before us.

Discussion

Court of First Instance’s role in judicial review in non-refoulement claim

14.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, the risk of harm (if any) that would be faced by the applicant in his/her country of origin, the availability of state protection and the viability of internal relocation.  The role of the court in judicial review is not to re-assess the non-refoulement claim.  The court will 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 [2018] HKCA 524 at [14(1)].

Court of Appeal’s approach in appeal against refusal of leave for judicial review in non-refoulement claim

15.  An appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh.  What the appellate court is concerned with is the decision of the judge at first instance, which is considered in light of the ground(s) of appeal raised by the applicant.  The Court of Appeal will generally not admit fresh evidence unless the 3 requirements laid down in Ladd v Marshall[6]are met.  Nor will it normally entertain any new arguments that are fact sensitive that should have been raised in the court below.  In short, the Court of Appeal shall interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong.  See again Nupur Mst v Director of Immigration at [14(2) & (4)].

Ground 1

16.  As summarised above, the NRF Claim failed on the facts at both stages of the unified screening mechanism.  The questions whether the applicant would be at risk of life or torture if she is refouled to the Philippines and, if so, whether the danger would be lowered or negated by the availability of state protection and/or reasonable internal relocation options are all questions of fact within the province of the Board (after the Director).  The applicant’s much-repeated bare assertion that she would face harm if she should return to the Philippines is inconsistent with the findings of both the Director and the Board.  The applicant has not advanced any ground for judicial review, properly so called, that indicates any errors of law, procedural unfairness or irrationality on the part of the Board (or the Director) in reaching the negative findings of fact against her.

Ground 2

17.  As for Ground 2, the applicant has not identified what unofficial or hearsay news or outdated cases that the Board had improperly relied on and in what respects the Board had made “groundless speculations”.

18.  Turning to the written submission, there was no attempt by the applicant to elaborate on whether and, if so, how the legal principles she has quoted had not been honoured in the processing of the NRF Claim.

19.  In short, the applicant did not in the Form 86 or the accompanying affirmation point to any or any arguable error of law, procedural unfairness or irrationality in the Board’s Decision.  That being the case, the application for leave for judicial review of the Board’s Decision was hopeless and rightly dismissed.  Nor did she in the notice of appeal or the written submission before us identify any error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was plainly wrong.  We cannot discern any either.

20.  In any event, we have anxiously scrutinised the Board’s Decision and the Judge’s Decision and are satisfied that both are in order.

Disposition

21.  For these reasons, we see no basis to interfere with the Judge’s Decision. Accordingly, we dismiss the appeal.