ASPILAN BRENDA MENDIJAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2266/2018

[2021] HKCFI 1138

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2266 of 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the 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.  The Applicant is a Philippine national.  She came to Hong Kong as a tourist on 7 March 2011 and was permitted to remain as a visitor until 31 March 2011. She over-stayed since.  She surrendered to the Immigration Department on 24 July 2015.  On 29 July 2015, she applied for a non-refoulement protection claiming that she will be harmed or killed by her husband if returned to Philippine as a result of domestic violence.  She was released on recognizance on 27 August 2015. 

2.  In due course, her non-refoulement claim was assessed on all four applicable grounds available under the Unified Screening Mechanism (“USM”), namely:

(1)   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”);

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

(3)   risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“Persecution Risk”); and

(4)   risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“BOR 2 Risk”).

3.  By a Notice of Decision dated 22 September 2017 (the “Notice”), the Director of Immigration (the “Director”) rejected her claim.  On 4 October 2017, she lodged an appeal to the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) against the decision of the Director.   On 9 October 2018, the Board dismissed her appeal (the “Decision”).  On 19 October 2018, she applied for leave to apply for judicial review against the Notice of the Director, the Board’s Decision, the record of the screening interview and her non-refoulement claim form.

4.  The decision of the Director in the Notice is not subject to judicial review because there are in place procedures for appeal against the Director’s decision to the Board.   In fact, the Applicant has invoked those procedures by appealing to the Board.  A judicial review of the Decision of the Board, if she is entitled to, would adequately protect her interest. The record of the screening interview and her own non-refoulement claim forms are not reviewable as they are not decisions of an administrative body.  The former is a record of what she said during the interview; and the latter was a document prepared by herself.  The Court therefore treated her application as an application for leave to apply for judicial review of the Decision of the Board dated 9 October 2018 and her complaints against the Director as being directed at the Board as well.

The Applicant’s case

5.  The following account of the Applicant’s case is mainly based on the information in her non-refoulement claim form which was prepared by her with assistance of the Duty Lawyer Service and incontrovertible evidence. 

6.  The Applicant is now 41 years of age.  She is married and has three children, aged 13 to 17.  Her husband is a labourer.  They used to live in Baguio.  Her husband is a heavy drinker who regularly swear at her and beat her when drunk.  Eventually, the Applicant could not tolerate him in 2011 and left the matrimonial home, leaving her children behind.  After staying with a friend, Precy Bomogao (“Precy”), for a month, she came to Hong Kong on 7 March 2011.  She heard from Precy who heard within her husband’s community that her husband had threatened to kill her.  While in Hong Kong, the Applicant found a boyfriend in Hong Kong in 2012.  She learned that her husband was furious about her having an affair.  Her relationship with the boyfriend ended.

7.  The Applicant said she could not go back to Quezon City where she had once lived because her children would locate her and her husband would be able to find her.  She said it would be useless to seek police assistance as her husband had relatives in the police force.

The finding of the Board

8.  The Board accepted the Applicant’s evidence about her background and that she is a victim of domestic violence, but did not accept she had a genuine fear and risk for her safety. The Board noted that according to her evidence, her husband did not abuse the children and only assaulted her when he was drunk; but afterwards expressed regret for his actions and an intention to reform.  There was no suggestion that he would have harmed the Applicant if he were not drunk nor that he would pursue her in order to harm her, if she lived somewhere other than the family home.  Since the husband’s relatives generally took steps to protect the Applicant from her husband’s abuse, the Board found it unlikely that any relatives who were in the police force would disregard a complaint or would take steps to prevent colleagues from investigating the Applicant’s complaint against her husband.

9.  As the threat was something that Precy had heard in the community of which she and the husband are members, the Board was unable to find that such threat was made and placed no weight upon it.  The Board also considered there was no real possibility of the Applicant being prosecuted in the Philippines for adultery committed in Hong Kong. 

10.  The Board concluded that the Applicant failed to show that she would face the relevant risk under the four applicable grounds.  Further, the Board was satisfied that she could safely relocate herself to Quezon City.

The applicable legal principles  

11.  The role of the court in judicial review is not to re-assess the non-refoulement claim 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.  The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[1].

Grounds for judicial review

12.  On 19 October 2018, the Applicant lodged a twelve-page affirmation in support of her application.  The essence of her affirmation is about lack of language assistance; that the Decision was unfair, unreasonable, illogical, and gave no weight to the threat; that the Board did not give adequate reasons for its Decision; and that the Board did not explain how it assigned weight to be given to the different Country of Origin Information reports (“COI”). 

13.  As for her complaint about lack of language assistance, the Applicant’s complaint is that the majority of the documents in the appeal bundle were in English and without translation.  They were given to her shortly before the oral hearing before the Board.  No one explained the documents to her.

14.  In Re Zafar Muazam[2], Re Zunariyah[3], Re Zahid Abbas[4], Re Tariq Farhan[5], and Re Lopchan Subash[6], the Court of Appeal held that neither the high standard of fairness laid down in Sakthevel Prabakar v Secretary for Security[7] nor the judgment of FB v Director of Immigration[8] prescribes that a CAT claimant or 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. 

15.  The Applicant had the benefit of legal representation by the Duty Lawyer Service and interpretation services of a qualified interpreter at the screening interview and in presenting her case to the Director.  She also had the services of a qualified interpreter at the oral hearing before the Board.  The appeal bundle is basically made up of her non-refoulement claim form, the record of the screening interview and the decision of the Director in the Notice, including the COI.  She certainly knew what were in the non-refoulement claim form and the record of the screening interview.  The Notice of the Director was issued to her on 22 September 2017.  It was not until 11 June 2018 that the oral hearing was held.  The Notice is in English and, unfortunately, no translation was provided.  She cannot expect these documents to be fully translated for her.   She had in between the issue of the Notice and the oral hearing eight months to seek assistance from among her own circle.  Indeed, she had access to interpretation services as reflected in her affirmation which was written in English.  Also, she could have sought assistance from the interpreter at the oral hearing.  At the hearing, she expressly confirmed that what she said in the non-refoulement claim form and the record of interview were true and correct. If she was genuinely confused, she should have asked for an adjournment from the Board to enable her to prepare for the hearing.  It lies ill in her mouth to attempt to overturn the result of the hearing on this ground.  

16.  As for her complaint that the Decision of the Board was not interpreted to her, she must accept that language assistance is not a luxury or absolute right she is entitled. She had the benefit of interpretation services at the time of the oral hearing.  What is important is that the Decision was made as a result of proceedings properly conducted and in which she was not prejudiced due to lack of language assistance.  She can find out the result by making enquiries with the Board or the Immigration Department or from the Philippine community in Hong Kong.  In any event, she was aware of the Decision and was able to apply for judicial review within the time limit.  She was not prejudiced for want of a translation of the Decision.  Taking a global view of the circumstances, nothing amiss arose from the non-availability of legal representation or interpretation in the process before the Board.

17.  As for her complaint about the COI, the Board had not made use of any of the COI against her.  The Board found her fears and risks were unreal and did not believe her husband’s relatives in the police would disregard a complaint or would take steps to prevent their colleagues from investigating the Applicant’s complaint against her husband.  COI or more specifically police protection was a non-issue.

18.  As for her complaint that the Board failed to give sufficient reasons for its Decision, this complaint is groundless.  The Court was satisfied that the Board gave full reasons in its Decision consisting of sixteen pages.

19.  As for the overall or general complaint about irrationality and unreasonableness in the Board’s finding, these grounds of complaint are against the finding of facts by the Board.  The Court pointed out that the function of the court in judicial review is not to re-assess the non-refoulement claim afresh.  The court will only scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality.  Having rigorous examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; and observed a very high standard of fairness.  It was on that basis that the Board found there was no factual basis to support the Applicant’s claim for non-refoulement protection under any of the four applicable grounds. 

Conclusion

20.  Accordingly, the Court concluded that there was nothing that shows there was any error of law or procedural unfairness or irrationality in the Decision of the Board.  The Court found that the Board adhered to a high standard of fairness.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable.  The Applicant’s claim is not reasonable arguable.  There is no realistic prospect of success.  Accordingly, 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

[1]  [2018] HKCA 524 at para 14(1)

[2]  cacv 2/2018, (unreported) 23 March 2018

[3]  [2018] HKCA 14

[4]  [2018] HKCA 15

[5]  [2018] HKCA 17

[6]  [2018] HKCA 37

[7]  (2004) 7 HKCFAR 187

[8]  HCAL 51 of 2007, (unreported) 5 December 2008