RE G

HCAL92/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO.92 OF 2013

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J U D G M E N T

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Introduction

1.  The applicant was born on 3 April 1967 in the Republic of the Philippines (‘the Philippines’).  She entered Hong Kong on 16 October 2009.  She overstayed until 28 August 2011.  She was convicted of ‘Breach of condition of stay’ (‘overstay’) and was given a suspended sentence.  She lodged a refugee claim but was rejected by the United Nations High Commissioner for Refugees (UNHCR) in November 2011[1].

2.  She filed a torture claim on 8 June 2012.  Her claim was rejected by the Director of Immigration (‘the Director’) on 30 April 2013.  Her appeal to the Torture Claims Appeal Board was dismissed by the Adjudicator on 10 June 2013 (‘the Adjudicator’). 

3.  She applied for leave for judicial review of the Director’s decisions on 24 May 2013.  A few months later, this court gave leave for her to amend the original Form 86 to include the judicial review of the Adjudicator’s decision and other additional grounds of review.[2]

4.  This hearing only concerns the torture claim under Part VIIC of the Immigration Ordinance.[3] 

Background

5.  The applicant got married in 1985 but separated from her husband[4] after a few months.  She worked as a domestic helper in Hong Kong in 1997 and 1998.  She returned to the Philippines in December 2000 after convicted of overstaying.[5]

6.  In 2004, she cohabited with a high ranking police officer, David Areega (‘David’), in Pampanga, the Philippines.  She claimed that David was responsible for the security of the entire Pampanga.

7.  One day in 2004, a woman claiming to be David’s wife (‘the wife’) came to her home and slapped her.  She did not report the assault to the police.  She did not seek medical treatment. 

8.  On another day in 2004, the wife came again.  She insulted and slapped the applicant.  The applicant did not seek medical treatment nor reported the incident to the police. 

9.  One day in December 2007, the wife came again.  She wore police uniform.  She threatened to kill the applicant if the latter did not leave David.  The applicant informed David about this incident.  David told her to ignore the wife.  

10.  On another day in December 2007, the wife came and showed the applicant a marriage certificate.  She also threatened to cause trouble to the parents of the applicant.  She used the butt of her gun to hit the applicant causing bruises and swelling on the applicant’s neck, shoulder and lower back.  The applicant was taken to a hospital by the neighbour.  She was given pain relieving drugs.  She was then discharged.  The applicant stayed at her parents’ house at Santa Maria in the next few days.  However, David kept on visiting her.  The applicant decided not to report to the police. She did not want to affect David’s reputation and career.  

11.  The applicant stayed with her parents from December 2007 to October 2009 at Santa Maria.  She left the Philippines on 16 October 2009 for Hong Kong.  

12.  After entering Hong Kong, she was allowed to stay as a visitor until 24 October 2009.  She overstayed until 28 August 2011.  She was convicted of overstaying and sentenced to 2 months imprisonment suspended for 3 years. 

13.  She lodged a torture claim on 15 June 2012.  Both the Director and the Adjudicator rejected her claim.  She challenged these decisions by way of judicial review. 

14.  Immigration record showed that from 6 January 2003 to 23 October 2009, the applicant had stayed in Hong Kong as a visitor for 308 days.

15.  In particular, the applicant came to Hong Kong on 26 August 2007 to visit her boyfriend[6] who was a pilot with Cathay Pacific Airways.  She travelled between Hong Kong and China on numerous occasions between 5 September 2007 and 21 January 2008 to extend her stay in Hong Kong.  This movement record was inconsistent with her claim that she was attacked by the wife twice in December 2007 in the Philippines. The applicant explained to the screening officer that she could not recall the exact year of the attack by the wife. 

The decisions of the Director and the Adjudicator

16.  The Director rejected her claim on the following grounds:

(i) The nature of the injuries sustained by the applicant did not amount to severe pain and suffering defined under s.37U(1) of the Immigration Ordinance. 

(ii) The threat made by the wife was of personal nature.  There was no official involvement.

(iii) The threat and assault was never reported to the police in the Philippines.  There was no evidence that the government as a whole was aware of the situation and refused to act. 

(iv) The Philippines government respects freedom of movement in practice.  The applicant could stay with her parents at Santa Maria as she did during December 2007 to October 2009.  The applicant had local and overseas working experience.  There was no undue hardship arising from internal relocation.

17.  The Adjudicator reviewed all the material in the file and found no advantage for holding an oral hearing.  He dismissed the applicant’s appeal as follows:

(i) The affair between the applicant and the wife was private in nature.  There was no evidence of government or official involvement.

(ii) The applicant had not been detained or imprisoned.  She departed and returned to the Philippines via proper immigration channel without any difficulty.  This indicated that she was not targeted by any official.

(iii) There was no evidence which indicated that the applicant suffered any injury which amounted to “severe pain and physical or mental suffering reaching the minimum level of severity”.  Nor was there any injury inflicted by any official.

(iv) There was no future risk of severe pain and suffering.  The evidence did not support a case for non-refoulement.

Extension of time

18.  Mr Ngan, counsel for the applicant, mentioned about the additional grounds against the decision of the Director and sought leave for extension of time to file additional grounds. 

19.  The original Form 86 dated 24 May 2013 only challenge the decision of the Director which was dated 30 April 2013.  It was within the 3-month-period under O53 r4(1).  I do not see any need to seek leave to extend time. 

20.  What Mr Ngan meant to say, as I understood, was the amendment of the statement in support of the application.  This may be amended under O53 r6(2). In fact, leave for this amendment had already been granted by this court on 26 August 2013. 

Grounds of review

21.  Mr Ngan raised eight grounds of review.  I shall discuss them as follows:

(A) The Adjudicator failed to conduct an oral hearing

22.  Mr Ngan argued that the Adjudicator failed to understand the country conditions in the Philippines.  The Adjudicator failed to give reasons for not holding an oral hearing.  He could not assess the country conditions of the Philippines.  Had the Adjudicator took the applicant’s case to the highest as he claimed, the conclusion must be that the applicant’s life was in grave risk.  Given all the circumstances, the decision of the Adjudicator was unlawful.

Should there be an oral hearing?

23.  It is common ground that there is no absolute right to an oral hearing.  Whether there should be one depends on factors including:

(i) The standard of fairness required,

(ii) The nature of the decision making process,

(iii) The procedural history of the matter.  Whether there had been an oral hearing before,

(iv) The interest at stake,

(v) The issues involved, and

(vi) The possible effect of the oral hearing.[7]

24.  In ST v Betty Kwan[8], CJHC stressed that, in torture claim cases, as life and limb were usually at stake, a high standard of fairness must be observed.  Given the inherent limitation of written submissions, high standard of fairness would require the holding of an oral hearing even when there was no factual dispute. 

25.  CJHC stressed that an Adjudicator should point out to an applicant matters which call for clarification.  His Lordship accepted that there might not be a duty of inquiry provided that an applicant was aware of his/her burden to prove the issues.  His Lordship stressed that it was important to let the applicant participate in such decision which might be of serious implication to him/her.  In fact, in Australia, New Zealand and England, oral hearing was the norm. 

26.  To understand how the above principles applied in ST, it is essential to set out the basic facts in that case. The petitioner was an ethnic Tamil from the north of Sri Lanka.  His whole family had links to the Liberation Tigers of Tamil Eelam (‘LTTE’) which was at war with the Sri Lankan government.  His father worked for the LTTE.  His brothers joined the LTTE. One of his brothers died fighting for the LTTE.  Being an ethnic Tamil, he was often ill-treated by the Sri Lankan Army and Police.  On the other hand, he feared conscription by the LTTE.  He thus left Sri Lanka for Hong Kong in January 2003.  The basis of his petition was that he feared ill-treatment by the Sri Lankan authorities as he was an ethnic Tamil and had participated in anti‑government activities. 

27.  CJHC ruled that the Adjudicator in ST should have held an oral hearing for the following main reasons:

(i) The Adjudicator relied heavily on two important decisions from the UK Asylum and Immigration Tribunal (“AIT”).

a     The case of LP which considered the situation during the civil war in Sri Lanka when there was serious security problems.  The AIT set out factors for assessing the risk of torture when failed refugee and torture Tamil claimants were repatriated to Sri Lanka.[9] 

b     The case of TK was decided after the civil war ended.  In TK, the AIT reviewed the guidance given in LP.  The AIT also considered the significance of the new computerised system for checking the background of ethnic Tamils when they were repatriated to Sri Lanka at the Colombo airport.  The question for the AIT was whether there was real risk of adverse treatment of ethnic Tamils since LP.[10] 

(ii) These decisions set out a principled approach, based on expert evidence, towards assessing the relevant personal risk to the torture claimant if returned to Sri Lanka.

(iii) These two cases are “country guidance” cases, for deciding similar cases involving asylum seekers and torture claimants from Sri Lanka.

(iv) The Adjudicator should have drawn the applicant’s attention to these cases given the high standard of fairness required in this kind of cases.

(v) This was especially so when the applicant had not adopted the AIT approach in his petition albeit he was represented. 

28.  In my view, the ultimate question is whether fairness requires the holding of an oral hearing in the light of the facts and the interest at stake.  This is particularly so when there is some dispute of the facts in an important aspect or that the adjudicator could not independently assess the risk asserted.  An Adjudicator should not refuse an oral hearing to save time and expense.[11]

29.  Mr. Ngan argued that the applicant had not explained clearly what she meant in the Torture Claim Form.  She said ‘it was not usual practice for citizens in the Philippines to report to the police’.[12]  Although she explained further during the subsequent interview[13] that she did not report because the wife of David [was] also a police officer, Mr Ngan argued that it was very likely that she did not understand the question[14]. 

30.  There is nothing in the amended Form 86 that support Mr Ngan’s claim—the applicant did not understand the question.  The applicant was represented by a barrister during the interview.  She could have sought advice if in doubt. 

31.  In fact, in the Torture Claim Form, she also indicated that she did not report to the police as she did not want to ruin David’s reputation.[15] She was asked to elaborate this during the interview but she just said ‘I did not report the case.’[16] 

32.  The applicant had ample chances to qualify her answers. There was nothing forthcoming.  The Adjudicator must have read the Torture Claim Form and related documents.  I cannot see how their content could have raised any concern for further clarification. 

Duty to make inquiry of country conditions

33.  Mr Ngan pointed out that the Adjudicator failed to inquire into the country conditions of the Philippines.  In fact, the Adjudicator did not make any reference to the country conditions of the Philippines in his decision. 

34.  In Prabakar, Li CJ commented on how the Secretary for Security could comply with the high standard of fairness in torture claim cases.  His Lordship pointed out that it would not be appropriate for the Secretary to sit back and put the claimant to strict proof.  The Secretary should draw the claimant’s attention to issues which obviously required clarification or elaboration.  As to country conditions, His Lordship recommended information published by the UNHCR and well-respected non-governmental organizations.[17]

35.  In the later case of TK v Jenkins & Another, in relation to the duty to inquire, CJHC pointed out,

“In my view, the bottom line of the high standards of fairness required of the screening process is fairness. And fairness, in the present case, did not require the Adjudicator or the Director to find out any such information for the represented applicant, at least in the absence of any request for assistance and an explanation of the difficulties (if any) encountered or anticipated.”[18]

36.  TK was a case of state acquiescence in which the claimant alleged that the police was indifferent and takes no action against the other party with whom the claimant had a land dispute.  The claimant alleged that he had no local protection.  CJHC pointed out that the applicant in TK was all along represented and could have obtained for themselves information to support their claim.  If the applicant and his legal representatives have not seen fit to obtain and supply such information to the Adjudicator, the high standards of fairness would not require the Adjudicator to do so for the applicant.  After all, there was no such request.[19] 

37.  In our case, the major issue is also state acquiescence as the wife was purportedly a police officer.  The question is whether the applicant would be subjected to real risk of torture if she returned to the Philippines.

38.  The applicant must be fully aware of these issues.  She was represented during the screening interview.  Questions were specifically asked on this aspect.  She indicated during the interview that she had no further document to produce.  She made no request for assistance nor indicated any difficulty in obtaining information. 

39.  The Director had referred to the Constitution of the Philippines, the 2011 Country Reports by the US Department of State and also news report from BBC.  In section B of his decision, the Director considered the issue of acquiescence and internal relocation.  The Adjudicator must be aware of all these.

40.  Mr Ngan criticised the Adjudicator for not making inquiry of the country conditions, however, he did not suggest any important inquiry which should have been made.  The Adjudicator indicated that he had considered all the materials in the file before coming to his decision.  Given the evidence in this case, there was no issue which warranted additional inquiry.

State acquiescence

41.  Mr Ngan submitted that the Adjudicator failed to assess the conditions in the Philippines.  He could not validly assess state involvement and acquiescence.

42.  In his decision, the Adjudicator correctly identified four elements in the definition of ‘torture’ under Article 1 of the Convention[20] as follows:

(i) severe pain or suffering whether physical or mental,

(ii) intentionally inflicted on a person,

(iii) for such purposes as obtaining from him or a third person information or confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, and

(iv) such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. 

43.  The Adjudicator further pointed out that general statements alone, that the police were corrupt or the conditions of the country were unsafe, was insufficient to establish personal risk of torture. It was only of background value.

44.  The Adjudicator pointed out that there was no state involvement and element (iv) failed for the following reasons:

(i) the appellant had no idea about the personal background of the wife or whether the latter was really a police officer.[21] 

(ii) even if the wife was a police officer, the assault had nothing to do with her job.  Further she did not assault the applicant in the course of her duty. 

(iii) the applicant had never been arrested, detained or imprisoned in the Philippines. [22] 

(iv) the applicant could depart and return to the Philippines through proper immigration channels many times without any problem.[23] 

45.  All these must be looked at in the light of the corresponding assessment in the Director’s decision which the Adjudicator had reviewed.[24]

46.  The Director pointed out that the applicant or her family had never reported the incidents to the police in the Philippines.  The applicant’s claim that the police in the Philippines would ignore her, even if she made a report, was a mere speculation. 

47.  In AM v Director of Immigration & Another,[25] McWalters J (as McWalters JA then was) cited the opinion of the Committee against Torture[26] and set out the scope of state acquiescence.  His Lordship pointed out that there could be active and passive state acquiescence.  The former occurred when the state failed to exercise due diligence to prevent, prosecute and punish a non-state official or private actors.  The latter occurred when the state’s indifference or inaction provided a form of encouragement and/or de facto permission to the conduct of a non-state official or private actors.  In both scenarios, the state must know or have reasonable grounds to believe that acts of torture or ill-treatment are being committed by a non-state official or private actors. 

48.  I agree with the principle set out above.  In our case, the applicant or her family never reported the matter to the police or any authority in the Philippines.  There is insufficient evidence to support state acquiescence. 

49.  In my view, the Adjudicator was fully aware of the basic facts and the essential components of the term ‘Torture’.  His finding that there was no “state actor” in element (iv) above rules out the possibility of state acquiescence. 

Country reports

50.  Mr Ngan relied on two Country Reports issued by the US Department of State.[27] The reports indicated that there were serious human right violations and corruption in the military and the police of the Philippines.  He argued that an oral hearing would have directed the mind of the Adjudicator to the relevant country information. 

51.  The Director had referred to the 2011 Country Report.  The 2012 Country Report added very little to the 2011 Country Report.  There was not much improvement in the conditions in the Philippines. 

52.  In TK, CJHC agreed that in proving the risk of torture, the standard of proof must be more than a ‘mere possibility’ but no need to be ‘highly probable’.  However, it must be ‘personal and present’.  His Lordship commented,

“Whilst the decision-maker must take into account all relevant considerations including, where applicable, the existence in the country concerned of ‘a consistent pattern of gross, flagrant or mass violations of human rights’, that alone does not as such constitute a sufficient ground for determining that a particular person will be in danger of being subjected to torture upon his return to that country. Additional grounds must exist to show that the person will be ‘personally at risk’…” [28]

53.  The Adjudicator cited this principle in paragraph 3 of his decision.  He must have read the 2011 Country Report which was in the file.  He then concluded that ‘there was no advantage or need for a hearing’.  In my view, the facts of this case and the documents before the Adjudicator were sufficient for him to assess the country conditions in the Philippines. 

Credibility of the applicant

54.  Mr Ngan argued that the Adjudicator did take the credibility of the applicant into account, there should have been an oral hearing. 

55.  I disagree.  In my view, the Adjudicator did accept the evidence of the applicant.  However, given those facts, he came to the conclusion that there was no ‘state actor’. 

56.  Given the discussion above, this ground fails. 

(B) Failure to invite submission before the decision not to hold an oral hearing.

57.  Mr Ngan argued that the high standards of fairness and the duty to act fairly required the Adjudicator to invite submission before deciding not to hold an oral hearing. 

58.  Mr Ngan had not submitted any authority to support his argument. 

59.  I reiterate that there is no absolute right to an oral hearing.  The high standards of fairness require that the Adjudicator to be pro-active in assessing the merits of a case.  He should not just sit back and put the applicant to strict proof.  Where there is some important aspect which obviously requires clarification, the Adjudicator should inform the applicant. 

60.  In Prabakar, Li CJ commented on what high standards of fairness require,

“In considering the potential deportee’s torture claim, the necessary high standards of fairness should be approached as follows: (1) The potential deportee, who has the burden of establishing that he would be in danger of being subjected to torture if deported to the country concerned, should be given every reasonable opportunity to establish his claim. (2) The claim must be properly assessed by the Secretary. (3) Where the claim is rejected, reasons should be given by the Secretary. The reasons need not be elaborate but must be sufficient to enable the potential deportee to consider the possibilities of administrative review and judicial review.”

61.  None of the authorities cited to me supports the proposition that an Adjudicator should have invited submission before deciding not to hold an oral hearing. 

62.  In making his decision, the Adjudicator must have borne in mind the factors set out in ST.[29]  The Adjudicator had analysed the evidence before him.  He had read the Director’s decision and the supporting documents.  I see nothing unfair in not inviting submission before deciding not to hold an oral hearing or not to give reasons for not holding one. 

(C) Insufficient Inquiry by the Adjudicator

63.  I have dealt with this issue in paragraphs 33—40 above. 

64.  Mr Ngan also pointed out that it was insufficient just to say that the case had been considered. 

65.  What is sufficient depends on circumstances.  In our case, the main argument was that there was state acquiescence as the wife was a police officer. 

66.  The Adjudicator analysed the evidence and pointed out that there was no evidence that the wife was a police officer, or if she was, she had acted in her official capacity.  The applicant could depart and return to the Philippines freely during the material time.  In my view, he had analysed the evidence and addressed the main issue in this case.  He concluded that there was no ‘state actor’ involved and therefore no ‘torture’ as defined under the Convention. 

67.  I reiterate what Li CJ said in Prabakar.[30]  The reasons need not be elaborate but must be sufficient to enable the applicant to consider the possibilities of judicial review.  I do not think there are insufficient reasons in our case.  I therefore reject this ground.

(D) Insufficient Inquiry by the Director

68.  Mr Ngan criticised that the Director’s investigation of state involvement was not sufficient. 

69.  In coming to his conclusion, the Director based on the evidence of the applicant.  In paragraph (A)(ii) of the decision, the Director pointed out that the applicant did not know the personal background of the wife.  There was no evidence that the threats and assault was made on behalf of any official.  There was no evidence that the conduct of the wife was instigated by any official. 

70.  Put it simply, even accepting her evidence, the applicant failed to prove that the conduct of the wife was done in an official capacity or instigated by any official.  The Director was not alerted of any aspect which warrants further investigation. 

71.  Mr Ngan also pointed out that the Director was wrong in concluding that it was not unduly harsh for the applicant to relocate to another area in the Philippines. 

72.  Again, the Director came to his conclusion based on the evidence of the applicant.  The latter stayed at her parents’ home for one and a half years without any trouble from the wife.  The Director also pointed out that the applicant was an able person having local and overseas working experience. 

73.  In the light of the finding that there was no state involvement, it is unlikely that the torture risk would remain high in another location in the Philippines.[31]

74.  The Director cited the Constitution of the Philippines, the Country Report and the BBC news report to show that the government there respected the freedom of movement in practice and enforced their law even against a high ranking official. 

75.  How much inquiry should be made, by the Director and the Adjudicator, depends on the facts and issues in a case.  In my judgment, the approach should be as follows:

(i) Subject to the high standards of fairness, the burden is on the applicant to prove the primary facts and convince the Director and the Adjudicator that what she said was true on the balance of probabilities.

(ii) The Director and the Adjudicator may have a duty to obtain information about the country conditions depending on the issues in dispute.

(iii) The applicant is expected to conduct her own investigation and obtain information essential to prove her case especially when she was represented.

(iv) There may not be a duty to keep probing where the applicant are aware of her burden and has sufficient chances to make representation and produce documents.[32] 

76.  In our case, the applicant failed to discharge her burden of proving the primary facts.  It is not incumbent upon the Director or the Adjudicator, in the absence of specifics, to inquire and assist her. 

77.  This ground fails. 

(E) The Director and the Adjudicator failed to consider mental torture

78.  Mr Ngan mentioned the death threat which would certainly create mental torture on the applicant.

79.  Both the Director and the Adjudicator cited the definition of ‘torture’ in their decisions.  Mental torture must be in their minds.  Certainly, they would not lose sight of the immigration record of the applicant.[33] It showed that she visited Hong Kong during 2003 to 2009 to visit her boyfriend.  She departed and returned to the Philippines voluntarily. 

80.  As a matter of fact, the applicant did not mention that she suffered any obvious mental torture.  The evidence cannot support that she did.

81.  I reject this ground. 

(F) The Adjudicator and the Director erred in concluding that there would be no risk of torture if the applicant returned to Philippines

82.  This ground overlaps substantially with the relocation issue.  I have dealt with that in paragraphs 33—49, (C) and (D) above.  I do not repeat. 

83.  I disagree with Mr Ngan.  The Adjudicator and the Director had analysed the evidence of the applicant before coming to their conclusions.  The reasoning was not as Mr Ngan put—that there would not be any risk of torture if the applicant returned to the Philippines because there was no torture in the past. 

(G) The Director and the Adjudicator failed to consider relevant considerations.

84.  Mr Ngan repeated his grounds in (C) to (F).  I have dealt with them individually above.  There is no need to repeat. 

(H) The Director and the Adjudicator had no sufficient basis to conclude that there would be no risk of torture if the applicant returned to the Philippines.

85.  Again, I have dealt with the relocation issue in paragraphs 33—49, (C) and (D) above.  I need not repeat. 

Conclusion

86.  Having considered the above, the applicant’s case is not reasonably arguable with realistic prospect of success. I refuse leave to apply for judicial review.