ABESAMIS DONNA MAE GALVEZ v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1547/2019

[2023] HKCFI 3309

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1547 of 2019

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

Following;

	consideration of documents only;          or
	consideration of the documents and oral submissions by the Applicant in open court;

Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 5 June 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (the “Board”) dated 23 May 2019 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 11 February 2019 (the “Notice”).

2.  The Applicant is a Philippine national. She first started working as a foreign domestic helper in Hong Kong in February 2016. She last entered Hong Kong for employment on 4 March 2018. Her contract of employment was terminated prematurely on 31 July 2018. She did not leave Hong Kong but overstayed. She surrendered to the authorities on 19 October 2018. In December 2018, she raised a non-refoulement claim.

3.  In due course, her non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. Her claim was dismissed by the Director’s Notice. Her appeal against the Notice was dismissed by the Decision of the Board. She now applies for leave to apply for judicial review of that Decision.

The Applicant’s case

4.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by her with legal assistance and the record of her screening interview in the presence of her lawyer. In gist, she claimed that she would be harmed by the former Governor of Isabela, Grace Padaca (“Padaca”) upon her return to the Philippines because Padaca blamed her for losing the 2015 gubernatorial elections and wanted her to pay back the money Padaca had given her for working as a poll watcher during the elections.

5.  The Applicant, now aged 31, was born in Dalig Burgos, Isabela, Philippines. She has around twelve years of formal education and has working experience as a secretary and a foreign domestic helper in Hong Kong.

6.  In 2015, she was introduced to Padaca, the then Governor of Isabela, by her maternal uncle. Padaca sought her assistance as a poll watcher and campaign helper for her upcoming election campaign. In return for her work and her family’s votes, Padaca paid her 160,000 Pesos which the Applicant promptly used to pay off her personal debts to a moneylender. Padaca lost in the election in May 2015.

7.  A month after the election, ie in June 2015, Padaca came to the Applicant's house with three men. She blamed the Applicant for losing the election, demanded her pay back the money Padaca had given her, and threatened to kill her if she failed to pay. In November 2015, Padaca came to the Applicant’s house with her men. In the ensuing altercation, the Applicant was stabbed by one of Padaca’s men and received a two-inch laceration on her right thigh. Padaca again threatened to kill her if she failed to repay.

8.  Following these incidents, the Applicant decided to work in Hong Kong to avoid Padaca and to make money to repay her. During her time in Hong Kong, Padaca repeatedly visited the home of the Applicant’s parents, inquiring her whereabouts. Every time when she returned to the Philippines for holidays, the Applicant never went back to her home village for fear of running into Padaca and her men.

9.  The Applicant believed it unlikely that the Philippine authorities would protect her because she is only an ordinary citizen while Padaca is an influential political figure. She opined that the government’s effort in improving its law enforcement and in fighting corruption cannot enable her to receive the protection required. She did not believe internal relocation would be viable due to Padaca’s wide-reaching connections. She also did not want to get her family and friends into trouble.

The finding of the Board

10.  The Board tested the Applicant’s testimony against country of origin information (COI) and official records of the Philippines. It found numerous inconsistencies between her evidence and the COI or the official records. The Applicant was unable to explain the inconsistencies. She even conceded she was incorrect in some of her evidence and was confused about the dates when the election took place. Hereunder are some of the most flagrant inconsistencies.

11.  First, the gubernatorial elections which the Applicant allegedly assisted in took place on 9 May 2016, while she was actually working in Hong Kong, and not in 2015 as she alleged.

12.  Second, the Applicant claimed that Padaca was the Governor of Isabela from around 2010 to 2015 and she was to assist in her re-election campaign in 2015 (or 2016, assuming she was honestly mistaken about the date). This is contrary to a contemporaneous newspaper article showing that Padaca was unseated as Governor in 2009 and was serving as the Commissioner on Elections during 2012 to 2014. She could not have been the Governor from 2010 to 2015.

13.  Third, the Applicant claimed there were only two candidates for the post of Governor of the State of Isabela, namely Padaca and Bojie. But the webpage of the Philippines Commission on Elections show there were four. After examining some photographs in the COI, the Applicant identified Bojie as a man named Faustino S Dy Jnr. But the COI show that Faustino S Dy Jnr was the man who ran against Padaca in the 2001 gubernatorial elections, not in the 2015 or 2016 elections; and another man also referred to as Bojie was named Faustino G Dy III is the current Governor of Isabela (who won the 2016 election). The Applicant conceded that she must have been incorrect when she claimed in relation to the 2016 election that Bojie is Faustino S Dy Jnr.

14.  Fourth, in her written submission dated 10 December 2018, the Applicant alleged that Padaca personally stabbed her thigh. That is contrary to her answer to Question 35 (in the NCF or screening interview) that her thigh was wounded by a dagger wielded by one of Padaca’s men. The Applicant explained that in the NCF she was correcting her mistake made in the written submission. But the Board found it odd to have made that mistake in the first place as the assailant was a man and Padaca was a disabled woman using crutches who would have great difficulties manipulating her two crutches while holding a knife and moving towards the Applicant and to successfully strike her.

15.  The Applicant also showed a lack of understanding of the relevant gubernatorial elections, such as the number of voting precincts, the number of people who voted in the election, the number of candidates and their identities. The Board found she was ignorant about the information which she would have had if she had indeed worked in the gubernatorial elections.

16.  The Board was not satisfied that the inconsistencies could be explained by the Applicant’s claim of confusion and found as a fact that she “fabricated” most, if not all of her evidence. It found her incredible and rejected almost the entirety of the evidence relating to the core of her claim, in particular, that she had worked for Padaca in the gubernatorial elections, that Padaca had given her the sum of 160,000 pesos in April 2015 as remuneration, and that she had been stabbed on her thigh by Padaca or any of her men. It found there is no evidence that the authorities in the Philippines have acquiesced in the alleged ill-treatment of the Applicant, that Padaca had ill-treated the Applicant with an intention listed in the definition of torture in Section 37U of the Immigration Ordinance and that the state of the Philippines was unwilling or unable to afford protection to the Applicant. It concluded that the Applicant had failed to prove that her fear is well-founded.

17.  Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found the Applicant had failed to establish the factual basis to support her claims for protection under any of the four applicable grounds under the USM and dismissed her appeal against the Director’s Notice.

The legal principles applicable to judicial review

18.  The function of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[5].

Grounds for judicial review

19.  The Applicant did not put forward any grounds of application for judicial review in her Form 86. In her supporting affirmation, she set out the procedural history of her claim; and reiterated that what she had told the Board in her documents are true. She repeated her fears and risks if returned to the Philippines.

20.  She said that she was only given the hearing bundle six days prior to the hearing before the Board and the majority of the documents in the hearing bundle were in English. She said she did not have sufficient time to prepare for the hearing, that she was unable to engage a reasonably affordable interpretation service and was unrepresented. She complained that due to lack of understanding of what was going to happen in the hearing, she was confused. Though she did not insist on pursuing this ground at the hearing, it is nevertheless considered in the next section.

21.  She also complained that the Board significantly relied on COI which are not officially recognized or are simply hearsay and on cases which are fairly outdated considering the dramatic changes. She submitted that the lack of credible COI resulted in the Board making groundless speculation that it is safe for her to return to the Philippines.

22.  The essence of her complaint is procedural unfairness and error of law in taking irrelevant information into account and failing to take relevant information into account in reaching its Decision.

Discussion and conclusion

23.  In respect of the Applicant’s complaint about lack of legal representation, it must be understood that as was held by the Court of Appeal in Re Zafar Muazam[6], Re Zunariyah[7], Re Zahid Abbas[8], Re Tariq Farhan[9], and Re Lopchan Subash[10], neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar[11] nor the judgment of FB v. Director of Immigration[12] prescribes that a claimant of BOR 2 or BOR 3 or persecution risks has an absolute right to free legal representation at all stages of the proceedings. The real question is whether the claimant is prejudiced for want of legal and language assistance.

24.  The Applicants had the benefit of legal representation in presenting her case to the Director. All the benefits that legal representation could have afforded her were contained in the written submissions, the NCF and answers in the screening interview given under legal advice. All these had been presented to the Director, which were then presented to the Board. Despite she was not legally represented at the oral hearing before the Board, all the benefits which legal representation could have afforded her were before the Board. Taking a global view of the circumstances, nothing amiss arose from the non-availability of legal representation in the hearing before the Board. The Applicant suffered no prejudice due to lack of legal representation before the Board.

25.  The Applicant said that the hearing bundle is in English and she is not familiar with the English language and could not afford interpretation service. In Karamjit Singh[13], the Court of Appeal held that it could not have been the intention of any authority laying down the principle of a high standard of fairness that the principle would include provision of interpretation service at any time a claimant desired or required. It must be borne in mind that it was the Applicant’s choice to come to Hong Kong where the official languages are Chinese and English. In the circumstances, she has to live with or cope with her language disability. She cannot expect to have the luxury of any documents to be fully translated into her native language for her benefit as and when she requires. She has to find assistance herself from among her friends and her ethnic community. The Filipino community is probably the largest non-local community in Hong Kong. Indeed, the Applicant was able to file an adequately well written affirmation in English.

26.  Furthermore, the hearing bundle is basically made up of her NCF, the record of her screening interview, and the Director’s Notice of Decision with the COI. The Applicant knows what is contained in her NCF which was filled in by her with the assistance of an interpreter and the Duty Lawyer Service. She knows what is contained in the record of screening interview which she attended with the assistance of an interpreter and legal representation. The record had been read back to her in her own language, and she signed to acknowledge that she understood and agreed with its contents and that no amendment was necessary. The Notice and COI are in English and unfortunately have not been translated. As mentioned above, she should not do nothing and expect the host country would translate the documents to her as and when she requires. She has to find assistance herself from among her friends and her ethnic community. Recognizing the limitation in her foreign language ability and the importance of her claim, she ought to have taken notes, at least very brief ones, to remind her of what she had said or written rather than relying on the host country to provide her the convenience of interpretation at her fingertips.

27.  The Applicant complained that after excluding the two-day weekend she only had four days to prepare for the appeal. On the face, a period of four days appears to be short. However, she should not indulge herself for the weekend and forget about her appeal as if she were a tourist enjoying her holiday visiting Hong Kong. Furthermore, having regard to fact that she should be familiar with what is contained in the hearing bundle, the period is not inadequate. Besides, time should start to run, not from the day of receipt of the hearing bundle, but from the date of receipt of the Notice which she sought to appeal, if she was serious about the appeal. The Notice was issued on 11 February 2019. The oral hearing was held on 7 May 2019. In between, she had almost four months to find out what the appeal bundle is about. In any event, if she need more time for preparation, she could have raised that with the Board at the hearing.

28.  As for her complaint about the COI, they are all from contemporaneous, official, authoritative and credible sources such as the webpage of the Philippines Commission on Elections and publication by the Isabela Tourism Office of the Government of the Philippines. The Applicant has not identified any COI relied on by the Board which does not fall within the above category. The COI is about the 2016 elections. They are contemporaneous and there is no question that they are outdated. At the hearing, she confirmed that she did not have any COI capable of rebutting the COI relied on by the Board were from official and authoritative sources and were contemporaneous. Her allegation that they are not officially recognized are mere assertions only. Some information may be hearsay, but that does not make it inadmissible.

29.  The Board’s Decision is basically that the Applicant failed to prove her fears and risks at the hands of Padaca. It had not relied on any COI about the country condition which makes it safe for the Applicant to return to the Philippines. Hence, there is no substance in the Applicant’s argument that lack of credible COI has resulted in the Board making groundless speculation that it is safe for her to return.

30.  Having rigorously examined the Board’s Decision, the Applicant’s grounds for application, the papers and the evidence with anxious scrutiny, the Court is satisfied that there is no substance in any of the grounds of application advanced by the Applicant. The Court is also satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof and quoted relevant precedents in support of its Decision. The Board clearly understood that its duty was to consider the Applicant’s claims afresh and not just whether to uphold or dismiss the Director’s decisions in the Notice. It correctly identified the factual and legal issues raised in the claims. The Applicant’s claim is founded on her fear of harm by Padaca and her men. The Decision of the Board was based on its assessment of the Applicant’s credibility and her risk of harm. The Board had carefully weighed the evidence and assessed her credibility. It found her incredible. It gave detailed reasons for its finding. As the Applicant bears the burden of proof of her claim, such a finding is fatal. It was on that basis that the Board found that there was no factual basis to support the Applicants’ claims for non-refoulement protection under any of the four applicable grounds.

31.  The Board’s Decision is a finding of fact which is exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Decision was utterly without fault. There are no errors of law in its Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board observed a very high standard of fairness. Its Decision does satisfy the enhanced Wednesbury test. It is not irrational. Having considered her grounds of application, the Court is satisfied that the Applicant’s claim is not reasonably arguable. There is no realistic prospect of success in the proposed judicial review. For the above reasons, leave to apply for judicial review is refused.

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