RE MAPILI EMILYN SAMPAGA

CACV 375/2018

[2018] HKCA 994

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 375 OF 2018

(ON APPEAL FROM HCAL NO. 712 of 2017)

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J U D G M E N T

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

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Woodcock (“the Judge”) given on 24 July 2018 refusing her leave to apply for judicial review.  The intended judicial review is against the decisions of the Director of Immigration (“the Director”) dated 17 June 2015 and 8 June 2017 rejecting her non-refoulement claim, and the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 22 September 2017 dismissing the applicant’s appeal against the Director’s decisions.   

2.  The applicant is a Filipino national.  She entered Hong Kong on 29 September 2010 and was permitted to work as a domestic helper until 29 September 2012 or two weeks after termination of employment, whichever was earlier.  Her employment contract was terminated prematurely on 8 September 2011.  In October and November 2011, she wrote to the Immigration Department by way of written significations expressing her unwillingness to return to the Philippines.  While being released on recognizance, she failed to report to the immigration officer.  On 10 May 2014, she was arrested by the police.  She filed her non-refoulement claim form in March 2015.

3.  The basis of the applicant’s claim was her fear of being harmed or killed by her stepfather because she had failed to repay a loan she took from him, and also by her husband because she had a boyfriend in Hong Kong.  The facts of the applicant’s claim were detailed in the Director’s first decision and the Board’s decision.  In gist, the applicant said she took a loan from her stepfather to enable her to come to Hong Kong to work as a domestic helper, and she failed to make repayment after she lost her job.  During two telephone conversations in November 2011 and January 2012, her stepfather threatened to kill her if she did not repay him and if she were to return to the Philippines.  Her stepfather has not contacted or spoken to her since then. The applicant also said that in August 2012, a friend told her husband she had a boyfriend in Hong Kong.  Her husband, who is a senior police officer, telephoned her and threatening to beat or even kill her if she were to return to the Philippines.  Since the call, he has not contacted the applicant.     

4.  By his decision dated 17 June 2015, the Director rejected the applicant’s claim having regard to the torture risk[1], the BOR 3 risk[2] and the persecution risk[3] grounds.  The applicant appealed to the Board and an oral hearing took place on 31 October 2016.  Subsequently, the Director assessed the applicant’s claim under the BOR 2 risk ground[4] and determined against her in the further decision dated 8 June 2017.  By letter dated 14 June 2017, the Board invited the applicant to submit additional grounds of appeal and materials relevant to the Director’s further decision.  The applicant did not respond to the letter.  The Board proceeded to consider her appeal on the basis of all the applicable grounds based on the materials and evidence already available to it.  By its decision dated 22 September 2017, the Board dismissed the appeal. 

5.  The applicant filed a Form 86 and a supporting affirmation on 3 October 2017 seeking leave to apply for judicial review of the decisions of the Director and the Board.  The applicant relied on the following grounds in support of the relief claimed:

(1)   Against the Director’s decisions

(a)   Failure to appreciate and take into account the presence of state acquiescence in that the applicant’s husband was a senior police officer and it is highly possible that he will carry out his threat using his police network.

(b)   Failure to consider or give sufficient weight to the country of origin information (“COI”) relating to police corruption, and the conclusion that state protection was available was mere speculation.

(c)   Failure to attain the high standard of fairness.

(2)   Against the Board’s decision

The Board erred in ways similar to the Director and was indifferent to, and failed to see, the errors of the Director.   

6.  At the applicant’s request, an oral hearing was held on 6 March 2018 to hear her leave application.  The Judge was of the view that the intended judicial review had no prospect of success, and refused to grant leave to apply for judicial review.  In the Form CALL-1 dated 24 July 2018, [2018] HKCFI 1628, the Judge analysed the decisions of the Director and the Board at [7] to [14] and set out her reasons for decision in [16] to [18] as follows:

16.  The applicant did not rely on the extended concept of State acquiescence.  The applicant made no report to the police or any authority in the Philippines.  The decision-makers did not consider this concept.  This is not a case where State authorities or others acting in an official capacity knew or had reasonable grounds to believe that any acts of torture or ill-treatment were being committed by non-State officials or private persons and they failed to exercise due diligence to prevent, investigate, prosecute and punish such non-State officials or private persons.  I find no substance in the applicant’s first complaint or ground against the Director.

17.  As far as the complaints against fair and proper consideration of COI is concerned, both decision-makers obviously referred to objective, relevant and up-to-date material.  The applicant was legally represented before the Director.  In her affirmation she submits that the COI is speculative but provides no further particulars to support that submission.  I find this complaint and ground against both decision-makers without merit.

18. I do not find any ground that shows there was an error of law by the adjudicator.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.  The same applies to the decision of the Director.”

7.  The applicant filed a Notice of Appeal dated 7 August 2018 to appeal the Judge’s decision.  She advanced the following grounds of appeal:

(1)   The Judge erred in law, fact and logic in concluding that there was no need for the Director or the Board to consider the presence of state acquiescence.

(2)   The Judge erred in finding that state protection was available, despite that the findings of the Director and the Board that there were alternative avenues to seek justice in the Philippines were mere speculations.

(3)   The Judge erred in concluding there was procedural fairness, despite that she was not legally represented during the hearing.

8.  In her written submission lodged on 16 November 2018, the applicant elaborated on the grounds of appeal as follows:

(1)   On Ground (1), relying on passages in Re MI (unreported) CACV69/2014, 26 September 2014 and MDB v Betty Kwan (unreported) HCAL 18/2012, 21 March 2014, and paragraph 18 of General Comment No. 2 (24 January 2008) issued by the United Nations Committee Against Torture, it was argued that:

(a)   Despite the Philippines government’s intention to prevent torture or ill-treatment being inflicted on the applicant, it would still breach its duty of due diligence if the government mechanisms in force, such as the police and judicial organs, are ineffective in practice. 

(b)   Similarly, even if there are legislations that can protect the applicant from risks of torture, the State remains liable for breach of its duty of due diligence if there is evidence showing the legislations are ineffective in practice.      

(2)   On Ground (2), the Director had misdirected himself in considering what the Philippines authorities would be able to provide, rather than what they are in fact providing in terms of state protection.

(3)   On Ground (3), it was established in The Council of Civil Service Unions v Minister for Civil Service [1985] AC 374 and Pearl Securities Limited v Stock Exchange of Hong Kong [1999] 2 HKLRD 243 that decision makers have a duty to act fairly, and this duty was said to be a constitutional duty in Rowse v Secretary for the Civil Service & Ors [2008] 5 HKLRD 217 at §134. 

9.  We heard the applicant’s appeal on 14 December 2018.  The applicant had nothing to add to her written submission.

10.  We would, first of all, point out that, as held in Re Moshsin Ali [2018] HKCA 549 at [31] to [45], the decision of the Director is no longer susceptible to judicial review once an appeal to the Board is pursued by a non-refoulement claimant.  This is because the Director’s decision is superseded by the Board’s decision.  Accordingly, it is not open to the applicant to challenge the Director’s two decisions by way of judicial review.     

11.  We turn next to consider the grounds of appeal.  On Ground (1), we are of the view that the Judge did not err in rejecting the argument on state acquiescence.  Firstly, the Board found, on the facts relied by the applicant, that her stepfather’s and also her husband’s interest in pursuing her would have reduced over the years, and that it is highly unlikely that either of them will seek her out and harm her upon her return to the Philippines, especially if she relocates to areas other than her home place.  The Board therefore concluded that the ill-treatment or harm she feared is unlikely to materialise.  In the light of this finding of the Board, there is no factual basis for applying the principle of state acquiescence.  

12.  Secondly, the problems that the applicant has with her stepfather and her husband are undoubtedly private in nature.  Even though her husband is a police officer, he did not make the threat on behalf of the State or in his official capacity.  Further, the applicant had never reported the threats made by her husband and her stepfather to the police or other government authorities.  On these undisputed facts, there is no basis to engage the principle of state acquiescence, whether in its traditional or extended form. 

13.  The authorities referred to in the written submission (i.e. Re MI and MDB v Betty Kwan) do not assist the applicant.  For the principle of extended state acquiescence to apply, it must be shown, inter alia, that the State authorities know or have reasonable grounds to believe that acts of torture are being committed by non-state actors, and they fail to exercise due diligence to prevent, investigate, prosecute and punish such non-state actors: see paragraph 18 of General Comment No. 2 (24 January 2008) issued by the United Nations Committee Against Torture.  In the present case, given that only verbal threats were made by the applicant’s husband and her stepfather, that the applicant never reported their misdeeds to the government authorities, and there is nothing to show that the Philippines government or its authorities know, or have reasonable grounds to believe, the applicant’s husband or her stepfather had committed the misdeeds, there is no basis to say that the State has failed to exercise due diligence to prevent, investigate, prosecute or punish the applicant’s husband and her stepfather.      

14.  Ground (2) is also untenable.  The Judge did not discuss availability of state protection in the Philippines (see [6] above), let alone make finding that state protection was available.  In any event, review of country conditions and assessment of the availability, or otherwise, of sate protection are matters for the primary decision makers, and not for the Court.  

15.  As for Ground (3), the mere fact that the applicant was not legally represented in the appeal before the Board and/or in the hearing before the Judge does not lead to the conclusion that there is procedural unfairness. This Court has stated in a number of decisions that the high standard of fairness does not mandate that a non-refoulement claimant is entitled as of right to be legally represented in all stages of the proceedings relating to his claim.  While a decision maker is under a duty to act fairly, this does not translate to a duty to ensure that legal representation is available to the party affected by his decision.  For the appeal to the Board, it is for the applicant to take the initiative to approach the Duty Lawyer Service if she wished to have legal representation.  The Duty Lawyer Service will consider such request on a case-by-case basis, having regard to the merit of the case and other relevant factors. 

16.  In respect of the hearing before the Judge, the applicant had applied to adjourn it on the basis that the outcome of her legal aid application was pending.  The Judge refused the adjournment because the applicant did not make the legal aid application promptly.  About two weeks after the hearing on 19 March 2018, the legal aid application was refused.  Whether to allow the adjournment sought by the applicant is a matter within the Judge’s discretion, which the appellate court will not interfere unless it can be shown that the Judge was plainly wrong in the exercise of the discretion.  In our view, the Judge did not err in taking the view that the applicant did not act diligently in making the legal aid application, and to take this into account when deciding on the application to adjourn the hearing.  There is no merit in the complaint against the Judge’s rejection of the argument on procedural unfairness.   

17.  For the above reasons, there is no merit in the grounds of appeal. Accordingly, we dismiss the appeal.