SAGAT MARIANNE TRINIDAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL558/2017

[2018] HKCFI 1269

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 558 of 2017

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge Woodcock):

1.  The applicant is a Filipino national who first came to Hong Kong to work as a foreign domestic helper in November 2012 but terminated her contract and returned home in August 2013.  She came again on 1 March 2014 and was permitted to remain for two years or two weeks after termination of her contract, whichever was earlier.  Her contract was terminated on 5 June 2014 but she did not leave Hong Kong as required. She was arrested on 20 June 2014.  After that the applicant filed a non-refoulement protection claim which was rejected by the Director of Immigration (“the Director”) on 29 August 2016 and 13 June 2017.

2.  The applicant then lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”) and her appeal was rejected on 8 August 2017.  The applicant then filed a notice of application for leave to apply for judicial review on 24 August 2017.  She requested an oral hearing which was set down for 26 January 2018 and the applicant appeared in person.  There is a 2^nd applicant which is the 1^st applicant’s daughter who was born on 26 February 2015 in Hong Kong.

3.  The basis of her claim is that if she were to return to the Philippines, her husband would kill her and her daughter because the applicant had extramarital sexual intercourse and her daughter was not her husband’s child.  The child’s father is not involved in her life.  Both the Director and the adjudicator of the TCAB set out the applicants’ claim and evidence in detail in their decisions therefore, there is no need to repeat it here.

4.  Essentially the applicant’s fear stems from a threat by her husband to kill her and her child when he found out she was pregnant by another man.  She decided to remain in Hong Kong and overstayed because of that fear.  She has children in the Philippines but she left the Philippines to work in Hong Kong despite the disapproval of her husband.  Her husband had in fact physically assaulted her when she refused to remain in the Philippines.  Her daughter lives with her mother now but her husband refused to let her son go as well.  Since her husband found out she was pregnant and remained in Hong Kong, he has been visiting her mother regularly to look for her and has threatened to kill them if she did return.

5.  The adjudicator, as did the Director, analysed the applicant’s claim under all applicable grounds;

(a)   risk of torture as defined in part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, (“torture risk”);

(b)   risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of Hong Kong Bill of Rights Ordinance Cap 383 and Article 7, International Covenant on Civil and Political Rights (“ICCPR”) (“BOR 3 risk”);

(c)   risk of persecution by reference to the non-refoulement principal under Articles 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“persecution risk”); and

(d)   risk of a violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Article 6 ICCPR (“BOR 2 risk”).

6.  The adjudicator conducted an oral hearing and treated the appeal as a rehearing.  The adjudicator correctly set out the applicable law and key legal principles for the grounds.  He set out the applicant’s evidence and claim in full, especially her evidence given in answer to the adjudicator’s questions.  He set out his findings and assessment of the applicant’s evidence and claim.

7.  The adjudicator found that she was not a credible witness and would appear to have exaggerated the nature and extent of the ongoing risk if she is refouled.  The adjudicator does not doubt that she may have suffered domestic violence at the hands of her husband in the past but has exaggerated the danger and threat to her and her daughter posed by the husband and his family.  The adjudicator found that even if there is a risk of harm from her husband, State protection against that threat is available.  The adjudicator considered that the village head had assisted her mother against her husband and there were government mechanisms available to women at risk of domestic violence in the Philippines.

8.  The adjudicator noted that the applicant was a national from the Philippines and her daughter would also be regarded as a citizen; she was not stateless.  His findings applied equally to both the applicant and her daughter, the 2^nd applicant.

9.  The adjudicator concluded that the applicants had failed to establish a claim under any ground.  There was no real risk the applicants would face torture as defined and set out in the Immigration Ordinance; the torture risk claim failed.  There was no evidence of any real risk to the applicants’ right to life or that they would face the prospect of torture or CIDTP; the BOR 2 and BOR 3 risk claim failed.  Lastly they could not establish they had a well-founded fear of being persecuted for reasons set out in the Refugee Convention; their persecution risk claim failed.  The adjudicator confirmed the decisions of the Director.

Leave to apply for judicial review

10.  I have considered, with rigourous examination and anxious scrutiny the papers, grounds of this application and the applicant’s submissions in the oral hearing.  I find the adjudicator’s decision to be without fault.  He analysed material, claim and evidence meticulously.  The applicant’s complaints against him and the procedure undertaken are not made out.  I find no substance in the grounds of this application.

11.  There are eight grounds in this affirmation and all contain no particulars. Grounds 5, 6, 7 and 8 contain no particulars.  As an example for ground 8, the failure of the assigned duty lawyer at the first instance, there are no particulars as to how the duty lawyer failed the applicant; it is a bare assertion. There was no complaint made to the adjudicator concerning the performance of the lawyer assigned to the applicant.  Ground 5 complains of the adjudicator taking into account irrelevant considerations and failing to put weight on facts that were favourable to the applicant but there are no particulars.  Ground 7 submits the adjudicator applied the incorrect standard of proof but does not expand on that allegation.  These grounds have no merits.

12.  In grounds 1, 2, and 4 it is submitted the adjudicator failed to consider relevant and up‑to‑date Country of Origin research, failed to do sufficient research and enquiry and failed to analyse and assess whether State protection exists under the extended meaning.  There are no particulars provided but in any event, the adjudicator did not need to consider Country of Origin information in detail because he found the applicant was not at any risk if refouled.  It was also unnecessary to assess state acquiescence or whether the Philippines had a consistent pattern of mass violation of human rights for the same reason.  These grounds are not arguable.

13.  The applicant complains she was not given sufficient time to prepare for her appeal, the appeal bundle was in English, she was confused during the appeal and felt the hearing was unfair to her. I will satisfy the applicant had the assistance of an interpreter and had the procedure of the hearing explained to her. There was no record of any complaint or comment that she was confused, ill-prepared or unhappy to proceed with the appeal.

14.  There is a complaint that the Director did not screen the BOR 2 risk claim before it was determined by the adjudicator which is misleading because the Director rejected that claim before the adjudicator’s determination. The adjudicator repeats the evidence that the applicant submitted to the Director to support her BOR 2 risk claim in his decision. Clearly she submitted that evidence to the Director before her appeal therefore this complaint is misleading.

15.  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.

16.  In my judgement, the applicants’ claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.

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

Form CALL-1