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HCAL440/2018
[2018] HKCFI 2767
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 440 of 2018
BETWEEN
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Domingo Mary Jean Suniga |
Applicant |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative Respondent |
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Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s Decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge Josiah Lam:
Leave to apply for judicial review be refused.
Observations for the Applicant
Background
1. The Applicant is a national of the Philippines. She is now aged 58 (DOB: 21 September 1960).
2. The Applicant claimed she would be harmed or killed by the New People’s Army (“NPA”) in the Philippines.
3. The Applicant was married in the Philippines in 1986. In 2006, she was abandoned by her husband. Her children were taken away from her. She then joined NPA. The NPA people stored supplies in her house including food, guns and ammunition. Later, the Applicant discovered NPA were not really fighting for the poor. They only made use of her to store goods for them. In late 2010, the Applicant thought of leaving NPA.
4. In 2011, the Applicant was aware there were government soldiers patrolling in the area where she lived. They were looking for the NPA people. The Applicant feared she would be caught and jailed. She intended to come to Hong Kong to avoid trouble.
5. In February 2011, the Applicant told her NPA comrades that she wanted to leave. She knew she might be killed for that.
6. The Applicant alleged one of the comrades Felipe then informed the local NPA head of her intention to leave. The head said Felipe could decide what to do.
7. One night, an NPA comrade Erlinda attacked the Applicant while Felipe threatened to kill the Applicant. The Applicant ran away. She heard gunshots fired at her. She ran into a jungle and was saved by an aborigine family. A few days later, she left the jungle and arrived in Manila on 8 March 2011. She contacted an employment agency, which landed her a domestic helper job in Hong Kong.
8. The Applicant entered Hong Kong to work as domestic helper on 5 April 2011. During her first employment contract, she went back to the Philippines three times. The Applicant claimed she went there to visit her children and she would not go home but stayed in the airport each time.
9. The Applicant's second employment contract in Hong Kong was approved on 21 March 2013. She last departed Hong Kong on 22 July 2013 and re-entered Hong Kong on 9 August 2013. The Applicant again said she only stayed in the airport in the Philippines because she was afraid of being noticed by the NPA people. The Applicant claimed her name had been put on a wanted list by the Philippines government due to her involvement with NPA.
10. The Applicant said she met an acquaintance Corazon at the airport, who said the Applicant’s house had been demolished by Felipe and Erlinda. Corazon told the Applicant not to return to the Philippines anymore lest she would be killed by NPA.
11. The Applicant said she was affected mentally by her fear. Her performance in Hong Kong became unsatisfactory and she was dismissed by her second employer in February 2014. She then overstayed in Hong Kong from 19 February 2014.
12. The Applicant was arrested six months later on 19 August 2014. She then raised a non-refoulement claim.
13. The Applicant said NPA could track her down in the Philippines. She had never sought help from the police and authorities in her country.
14. In the ensuing two-tier screening process here, the Director of Immigration (“the Director”) and the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”) respectively refused the Applicant’s claim with respect to all the four applicable grounds: (i) risk of torture,[1] (ii) risk of persecution,[2] (iii) risk of torture or cruel, inhuman or degrading treatment or punishment (BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4].
15. On 19 March 2018, the Applicant applied for leave for judicial review.
Timeline
16. Things happened in this order: –
| 2011-4-5 |
The Applicant entered Hong Kong to work as domestic helper. She had gone back to the Philippines three times during her first employment. |
| 2013-3-21 |
The Applicant's second employment contract was approved. |
| 2013-7-22 |
The Applicant last departed Hong Kong. She re-entered Hong Kong on 9 August 2013. Her second employment contract was prematurely terminated on 4 February 2014. |
| 2014-2-19 |
The Applicant began overstaying here. |
| 2014-8-19 |
The Applicant was arrested by the Immigration Department. |
| 2014-8-22 |
The Applicant raised a non-refoulement claim. |
| 2016-7-8 |
The Director refused the Applicant’s claim with respect to these three applicable grounds: (i) torture risk, (ii) persecution risk and (iii) BOR3 risk. [“the Director’s decision”] |
| 2017-6-19 |
The Director invited the Applicant to submit additional facts for the consideration of the fourth applicable ground: BOR2 risk. |
| 2017-7-3 |
The Applicant failed to submit additional facts by the deadline or thereafter. |
| 2017-7-26 |
The Director refused the Applicant’s claim with respect to the fourth applicable ground: BOR2 risk. [“the Director’s further decision”] |
| 2017-11-23 |
The Applicant appeared before the Board for appeal. |
| 2018-3-7 |
The Board refused the Applicant’s appeal with respect to all the four applicable grounds. [“the Board’s decision”] |
| 2018-3-19 |
The Applicant applied for leave for judicial review. |
Respondent/Interested party
17. The Unified Screening Mechanism is a two-tier process. The Director screens an applicant’s non-refoulement claim first; the applicant may appeal to the Board which deals with his/her case on a rehearing basis.
18. In Re Moshsin Ali, the Court of Appeal states that “the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”[5]
19. In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Adjudicator as respondent and the Director as interested party.
20. The Adjudicator was not acting in her personal capacity. She represented the Board. In court, the Applicant agreed to change to sue the Board in lieu of the Adjudicator. Thus, the Board is the putative respondent; the Director is the putative interested party.
The Director's decision
21. In his decision dated 8 July 2016, the Director did not accept the Applicant faced any torture risk, persecution risk or BOR3 risk. He also considered reasonable state protection and internal relocation were available to the Applicant in any event. The Director refused the Applicant's claim with respect to those three applicable grounds.
22. On 26 July 2017, the Director refused the Applicant’s claim with respect to the fourth applicable ground: BOR2 risk.
The Board's decision
23. The Applicant appealed to the Board. The Adjudicator interviewed the Applicant on 23 November 2017.
24. The Adjudicator found a number of unconvincing and inconceivable features in the Applicant's allegations. The Adjudicator found the Applicant incredible. She also found reasonable state protection and internal relocation were available to the Applicant in any event. The Adjudicator did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk.[6]
25. On 7 March 2018, the Adjudicator refused the Applicant’s claim with respect to all the four applicable grounds.
Grounds of judicial review
26. In her affirmation, the Applicant complained the Adjudicator unlawfully fettered her discretion; acted in a procedurally unfair manner; rendered unreasonable or irrational decisions; failed to meet the greater care and duty owed to a self-represented claimant.
27. The Applicant accused the Adjudicator failed to make sufficient inquiry; failed to consider updated or relevant country-of-origin information ("COI"); took into account outdated cases and irrelevant information; considered information not officially recognised or simply hearsay; cherry-picked information; failed to evaluate and make a finding of fact as to whether there existed in the Philippines a consistent pattern of gross, flagrant or mass violations of human rights; failed to call for psychological or psychiatric reports; failed to properly consider the issues of state protection and state acquiescence; applied the wrong standard of proof.
28. The Applicant complained there were failures by the assigned duty lawyer at first instance resulting in a lack of and/or insufficient legal representation.
29. The Applicant also complained she was given the appeal bundle only a few days before the Board hearing. As such, she did not have sufficient time to prepare for the appeal due to language problem and lack of legal representation. The Applicant said she was confused of what happened. She complained the Adjudicator failed to make appropriate arrangement.
30. Although the Applicant did not name the Director as respondent but only as interested party, she accused the Director decided on BOR2 risk without screening.
Court hearing
31. The hearing took place on 13 July 2018. The Applicant was in person. A Tagalog interpreter provided service in court.
32. The Applicant said a friend helped her to prepare Form 86 and the affirmation. All the grounds of judicial review were in the affirmation. The Applicant said she disagreed with the Adjudicator that she could seek assistance from organizations in the Philippines. She had nothing else to add to her grounds.
33. The Applicant confirmed she had submitted all of her case to the Director and the Adjudicator for their consideration of her non-refoulement claim.
Discussion
34. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
35. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[7] Nevertheless, it is said in Re Islam Rafiqul: –
“The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision-makers are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.” [8]
36. It was wrong for the Applicant to say the Director had not screened her non-refoulement claim with respect to BOR2 risk. The Director’s further decision dated 26 July 2017 was on BOR2 risk. The Applicant failed to submit additional facts for the Director’s consideration. The Director was entitled to consider the Applicant’s claim with respect to BOR2 risk without holding further interview. The Director’s further decision must be read in conjunction with his earlier decision dated 8 July 2016, where there was a detailed analysis of the Applicant’s case.
37. The Applicant complained there were failures by the assigned duty lawyer at first instance. The Applicant failed to provide particulars in this regard.
38. The Applicant complained there was a lack of and/or insufficient legal representation. She had been represented by the Duty Lawyer Service up to the Director's decision dated 8 July 2016.
39. The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings.[9] The Applicant failed to show how her case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.
40. The Applicant raised her language problem. In the current application, a friend helped her to prepare Form 86 and the affirmation. Apparently, the Applicant could find someone to assist her with interpretation/translation and dealing with English documents at all material times. Furthermore, the Applicant was assisted by qualified interpreters when she was still represented by the Duty Lawyer Service and also in the screening process before the Director and the Adjudicator. The Applicant had much exaggerated her language problem.
41. The Applicant complained she received the appeal bundle only a few days before the Board hearing.
42. According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’[10] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[11], the Director shall send copies of the hearing bundle to the Board and to the Applicant no later than 5 working days prior to the date of the hearing. There was no evidence the rules had been breached.
43. The appeal bundle would consist mostly of documents that had been seen or submitted by the Applicant during the first-tier screening of her claim. The Applicant's case was not difficult. There was no evidence to show the bundle was difficult or voluminous.
44. A few days certainly were not a long period but could still be sufficient for reasonable and diligent preparation on the part of the Applicant. The Applicant failed to show she really needed more time to prepare for her appeal. She had not complained to the Adjudicator or asked for adjournment during the appeal hearing.
45. The Applicant said she answered all the questions honestly in the Board hearing.[12] That would mean she knew well what was asked and how to answer. She was not confused.
46. The Adjudicator had considered the issues of state protection. She had proper basis to come to the conclusion that reasonable state protection was available to the Applicant. There was no question of state acquiescence as the Applicant had never sought help from the Philippines authorities. There was also no evidence the state was aware of the Applicant's alleged situation. Actually, state protection, state acquiescence and internal relocation were not real issues in the instant case as the Adjudicator disbelieved the Applicant's claim and did not accept there was any risk that warranted non-refoulement protection.
47. For the same reason, there was no necessity to call for psychological or psychiatric reports or to make a finding of fact as to whether there existed in the Philippines a consistent pattern of gross, flagrant or mass violations of human rights.
48. There was no evidence the Adjudicator cherry-picked information or took into account outdated cases/irrelevant information/information not officially recognised or simply hearsay.
49. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for her finding, conclusion and decision which were not Wednesbury unreasonable. She made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate her case. The Adjudicator was acquainted with the facts of the case. She considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim. None of the Applicant’s complaints is substantiated.
Conclusion
50. The Applicant's complaints are not reasonably arguable. She has no reasonable prospects of success in the sought judicial review. I therefore refuse to grant her leave for the review.
Dated 19th day of December 2018
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(Alan Ngan)
for Registrar, High Court |
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
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Notes for the Applicant:
If leave has been granted, the Applicant or his solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant on 19/12/2018
Domingo Mary Jean Suniga
Applicant’s ref. no:
Nil.
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 19/12/2018
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 4148/16/7/118/F235
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 171/16 & RBCZ 9002403/17 (formerly RBCZ 2679/14)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] As defined in Part VIIC of the Immigration Ordinance, Cap 115, which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
[2] By reference to the non-refoulement principle under Articles 33 and 1A(2) of the 1951 Convention relating to the Status of Refugees.
[3] Under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] Under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[5] CACV 54/2018, para 45.
[6] The Board's decision, paras 70-148.
[7] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[8] CACV 219/2018 [2018] HKCA 570, para 14(1).
[9] CACV 284/2017 Re Paswan Shibu Lal, para 21.
[10] The ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’ was issued by the Chairperson of the Board pursuant to section 16 of Schedule 1A to the Immigration Ordinance, Cap. 115 of the Laws of Hong Kong.
[11] The ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’ was issued by the Chairperson of the Board, who had been in her personal capacity delegated by the Chief Executive with the authority under Article 48(13) of the Basic Law of the Hong Kong Special Administrative Region to determine the practice and procedure of the Administrative Non-refoulement Claims Petition Scheme.
[12] The Applicant's affirmation, Point 5 on page 23.
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