MANGOBA MELODY PIEDAD AND OTHERS v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 308/2019

[2019] HKCA 1194

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 308 OF 2019

(ON APPEAL FROM HCAL 1680/2018)

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J U D G M E N T

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

Introduction

1.1.  This is an appeal by Ms Mangoba Melody Piedad (“MMP”), and her 2 sons, Galang Kyler Johan Rafael (“Kyler”) and Galang Kobe John Andrei (“Kobe”) (collectively referred to as “the appellants”) from an order of DHCJ Woodcock (“the Judge”) given on 25 June 2019 dismissing the appellants’ application for leave to start judicial review proceedings.  The Judge’s reasons for that order were given in a document referred to as the “Form CALL-1” (“the Judge’s Decision”)¹.

1.2.  The appellants had made their joint application to the Judge for leave to start judicial review proceedings to quash the decision of the Torture Claims Appeal Board (“TCAB”) given on 9 August 2018 rejecting the appellants’ claim that they should not be removed from Hong Kong and returned to the Philippines (“claim for non-refoulement”).  The TCAB’s Decision (defined in [7.2] below) was an appeal against the decision of the Director of Immigration (“the Director”) who had earlier rejected that claim.  

Background

2.1.  The appellants are nationals of the Philippines.  MMP was married in the Philippines to AA (“the Husband”) and they have 2 sons.  MMP started working as a domestic helper in Hong Kong in 1997 and began a relationship with JG, a Filipino domestic helper.  When the Husband found out about the relationship, he assaulted her.  They separated in 2001.  In 2004, her employment contract was terminated, but she did not return to the Philippines. In 2005, from her relationship with JG, she gave birth to Kobe.  She last had contact with the Husband in 2009.   In 2012, she had another son by JG, ie Kyler.      

2.2.  MMP first raised a torture claim for herself and Kobe which was rejected by the Director on 14 July 2011.  Her appeal was rejected on 29 August 2011.  On 5 July 2017, MMP filed the appellants’ non-refoulement claim.

The appellants’ allegations

3.  The appellants’ allegations in support of their claim have been set out in detail in the TCAB’s Decision (defined in [7.2] below) and in gist in the Judge’s Decision.  Put briefly, what they alleged was as follows: 

-  The Husband had once been a member of the NPA (New People’s Army), he was violent towards MMP, and had threatened her parents.

-  Kobe and Kyler suffered from autism and heart problems respectively, and both are being looked after under the Hong Kong education and health care systems.

4.  The appellants’ claim was examined to see if they would face any of the following risks if returned to the Philippines: the “BOR 3 risk”, “persecution risk”, “torture risk” and “BOR 2 risk”. 

5.1.  What is often referred to as “BOR 3” risk (ie covered by article 3 of the Hong Kong Bill of Rights Ordinance Cap.383) is a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment.

5.2.  “Persecution risk” refers to the risk of persecution covered by the non-refoulement principle under article 33 of the 1951 Convention relating to the status of refugees and its 1967 protocol, in brief, a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.

5.3.  “Torture risk” refers to a foreseeable and real present risk of torture covered by Part VIIC of the Immigration Ordinance Cap.115, in brief, severe physical or mental pain or suffering inflicted with state acquiescence, to obtain information, or as punishment or intimidation, or based on discrimination. 

5.4.  What is often referred to as “BOR 2” risk (ie covered by article 2 of the Hong Kong Bill of Rights Ordinance) is the risk of violation of the right to life.

The Director’s Decision

6.  The appellants submitted their claim for non-refoulement.  The Director’s representative had interviews with MMP.  They had legal assistance to prepare their claim.  After the interviews, the Director concluded that the appellants had failed to make out their claim for non-refoulement as a matter of fact. The Director gave his decision on 8 August 2017 refusing Kyler’s claim for reasons set out in the aforesaid decision in respect of “BOR 2 risk”, “BOR 3 risk”, “persecution risk”, and “torture risk”, while MMP and Kobe’s claim was rejected under all risks except the torture risk which was already refused on 29 August 2011 on appeal from their first joint torture claim.

The TCAB’s Decision

7.1.  The appellants then appealed to the TCAB which held a hearing on 27 April 2018 and 25 June 2018.  MMP appeared in person before the TCAB and she was assisted by an interpreter.  She gave oral evidence at the hearing.  The TCAB considered her evidence in detail and went through relevant country of origin information (“COI”) with her.

7.2.  The TCAB dismissed the appellants’ appeal for the detailed reasons set out in its decision (“the TCAB’s Decision”).  Essentially, the TCAB accepted that the Husband would pose a real threat to MMP and her 2 sons ([105]).  However, having considered the relevant COI, the TCAB found that there was state protection in domestic violence situations ([107]).  In any event, the TCAB found that she and JG with their children can relocate to other areas of the Philippines ([124]).  The TCAB did not accept that the Husband would be able to use NPA resources to locate them should they relocate ([108]).  Further, having considered relevant COI in relation to the situation of Kobe and Kyler, the TCAB considered that they would be able to receive educational and medical services they needed in the Philippines.  As a result the TCAB did not accept that there was a real risk that the 2 children would suffer serious or significant harm upon their return to the Philippines ([114]-[122]).

Application for leave to start judicial review

8.  The appellants made a joint application in the High Court for leave to start judicial review proceedings to quash the TCAB’s Decision. The appellants simply asserted that the TCAB had disregarded their dangerous situation.

The Judge’s Decision

9.1.  Since the appellants did not request an oral hearing, the matter was considered by the Judge on the papers.

9.2.  As mentioned earlier, the Judge refused leave for reasons set out in the Judge’s Decision, in particular

“ 5. The applicant’s supporting affirmation contains no grounds. She only writes that their lives would be in danger if they returned home. The applicant was given a further opportunity in January 2019 when this court wrote to her asking, among several questions, if she had any further submissions to make and although there was a response, there were no submissions. She only forwarded the decisions of the Director and the adjudicator of the TCAB to the court.

6. The adjudicator treated the appeal as a rehearing and held oral hearings on two separate dates. She correctly set out the law and key legal principles applicable to all four grounds. She set out in full and in detail the country of origin (“COI”) information that she relied upon. The adjudicator also set out the applicants’ evidence in great detail as well as what transpired during the oral hearings.

7. The adjudicator did not reject the applicant’s evidence or claim on credibility. She was of the view that the applicants’ evidence was consistent and accepted that the applicant had before she left for Hong Kong been subject to physical and emotional by her husband in the Philippines. The adjudicator accepted that there was a real risk of significant harm in the reasonably foreseeable future from her husband if she were to return to her home area because of her adulterous relationship in Hong Kong.

8. The adjudicator was of the view however that the applicants could obtain state protection such that they would be no real risk that they would suffer significant harm. She set out why she felt there was state protection available and the COI she relied on. She found there to be extensive and effective infrastructure in place in the Philippines to assist potential victims of domestic abuse and violence. There were ample reasons given why the adjudicator found there to be state protection available.

9. She accepted that the applicant’s husband had had prior connections to the New People’s Army (“NPA”) but that the organisation’s power and influence had declined significantly and they were not active in urban areas. She found there to be viable options for internal relocation for the applicants where they would be out of harm’s way.

10. The adjudicator spent much time considering the children’s claims, in particular their medical conditions and learning difficulties. She was satisfied that the COI information indicated there was free public education available to them and there was funding for special education centres and schools aimed at children with special needs. The adjudicator found that the COI information indicated that there were laws passed to protect and provide for disabled people, satisfying her that they had access to healthcare and education and in the event that they encountered any discrimination, they could seek redress as provided by the legislative protections in place. The adjudicator was satisfied there was no chance or risk that the 2^nd and 3^rd applicants would suffer serious or significant harm on return to the Philippines because of their disabilities.

11. She was also sure that the applicant was employable and found there to be no risk or chance of discrimination which would amount to serious or significant harm. She was educated in the Philippines completing her secondary education there and had extensive work experience as a domestic helper which means she was employable and had no language issues. These were the concerns of the applicant.

12. The adjudicator considered the applicants’ claims individually and cumulatively and concluded that they had not made out a successful case on any of the four applicable grounds. They were unable to show they were at risk of torture, CIDTP, or persecution if refouled to Philippines. They had failed to show that returning to the Philippines would expose them to a real risk of a violation of their rights to life so as to constitute a breach of BOR 2. The adjudicator confirmed the decision of the director.

13. Even though there were no grounds relied upon by the applicants, I did examine and scrutinised the adjudicator’s decision to ascertain whether she made any errors of law and whether she analysed the appeals/petitions with a high standard of fairness as is required. I considered whether the application of the enhanced Wednesbury test was satisfied.

14. A reading of her decision shows that she gave full consideration to the evidence, COI information and provided more than adequate reasons for her findings.  I found no failings on the part of the adjudicator.  I found no errors of law nor any evidence of procedural unfairness.  She did not fail to adhere to a high standard of fairness.  There is no realistic prospect of success and I refuse leave to apply for judicial review.”

Appeal to Court of Appeal

10.  By a Notice of Appeal filed on 4 July 2019, the appellants appealed the Judge’s order to this court, stating:

“I would like to reject and review the decision made by the court. They disregard my dangerous situation.”

Legal Principles

11.  It should first be noted that the position in law in an appeal to the Court of Appeal, as established by a number of judicial precedents, is as follows.

11.1.  The primary decision makers in relation to an appellant’s claim for non-refoulement are the Director and (in an unsuccessful claim) the TCAB.  They assess the evidence and are the finders of fact, which may include findings not only in respect of the appellant’s credibility in respect of his individual allegations, but also in respect of the risk (or otherwise) of harm, the availability (or otherwise) of state protection, and the viability (or otherwise) of internal relocation, having regard to relevant matters including the appellant’s personal circumstances as found after the hearing, as well as relevant information regarding the appellant’s country of origin.  

11.2.  When the matter comes before a judge of the Court of First Instance on an application for leave to start judicial review proceedings to quash the decision of the TCAB, the judge’s position is not the same as that of the Director or the TCAB.  Although the judge will adopt an enhanced standard when scrutinizing the decision of the TCAB due to the seriousness of the issue at hand, he does not hear the claim afresh as if he was the TCAB.  In keeping with established principles of judicial review, the judge cannot intervene by way of judicial review unless there are errors of law, or procedural unfairness, or irrationality in the TCAB’s decision.  The relevant cases establishing this position have been conveniently set out in Nupur Mst v Director of Immigration² and we will not repeat them here.  

11.3.  Subsequently if the matter comes before the Court of Appeal, the focus is further refined to the scrutiny of the decision of the judge as challenged in the grounds of appeal.  Again, in keeping with established principles governing appeals from a refusal of a judge to grant leave to start judicial review proceedings, the Court of Appeal would only interfere if the appellant can demonstrate that the judge had made errors of law, or had failed to take into account relevant matters, or was otherwise plainly wrong³.  Generally fresh evidence would not be admitted unless the requirements in Ladd v Marshall⁴ are satisfied.  Nor would the Court of Appeal generally entertain new arguments based on facts, when those arguments should have been canvassed before coming to this court.

Skeleton Submissions

12.  After filing their Notice of Appeal, the appellants were given directions by the Registrar of Civil Appeals to file skeleton submissions within the time prescribed, and informed that if they failed to do so, they shall be deemed to have waived their right to an oral hearing before the Court of Appeal.  The 1^st appellant filed her submissions on 23 September 2019 in which she said that the TCAB found that the appellants would face a real threat from the Husband if they were to return to the Philippines.  She referred to reports of extra-judicial killings and the government’s plan to withdraw from the International Criminal Court (“ICC”), and problems that the government had in Mindanao. 

Discussion

13.  Applying the legal principles set out above, it is clear that none of the circumstances permitting this court to interfere with the decision of the Judge is present in this case. 

13.1.  The appellants’ factual allegations had already been thoroughly examined by the TCAB, which had also considered the objective COI in great detail.

13.2.  The appellants did not state any specific grounds in their Form 86 or in MMP’s supporting affirmation.  She had not requested for a hearing before the Judge.  The Judge had considered the decision of the TCAB and all the papers in detail and she was correct in holding that the TCAB was entitled to make the findings that it did.  Before the Judge, MMP did not rely on the matters in her skeleton submissions before us relating to the government’s plans vis-à-vis the ICC, or its problems in Mindanao, and accordingly we would not take them into account (and in any event, it is difficult to see their relevance to the present case).  Before this court, she said she had nothing to add.     

14.  We can discern no error of law, nor can we see any relevant matters which the Judge had failed to take into account, nor can it be argued that the Judge was plainly wrong in refusing leave to commence judicial review proceedings against the TCAB’s Decision.

Order

15.  For the reasons set out above, this appeal must be dismissed.