BANSILES JAMAICHA BAGUINDO v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 871/2017

[2018] HKCFI 701

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 871 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:

1.  The applicant is a 35-year old national of the Philippines who last arrived in Hong Kong on 9 November 2006 as a contracted domestic helper.  When her employment was subsequently terminated prematurely she did not depart as required but instead overstayedsince 30 April 2007 for which she was eventually arrested for breaching conditions of stay on 15 March 2009 when she subsequently raised her torture claim on the basis that she fears that on her return to the Philippines she would be harmed or killed by her creditors for failing to repay her debts to them.

2.  The applicant was raised in Lidlidda, Ilocos Sur, the Phillipines where she lived with her parents and two siblings.  She has a college education and received her Bachelor of Science in Business Administration in 2004.  Thereafter she worked in the financial business in Makati City.  In 2005 she applied for a training course in London through an employment agency to which she paid a sum of 270,000 pesos borrowed from a man called BS repayable by six instalments at an interest rate of 25% on the principal sum.  BS is said to be a wealthy and influential man with a large trading business and acquaints with many politicians and has connection with the New People’s Army (“NPA”), a guerrilla group in the Philippines. 

3.  However in January 2006 the applicant discovered that the employment agency had closed down and the owner disappeared with her money.  In order to repay BS she decided to apply to work as a domestic helper in Hong Kong, and for which she borrowed 80,000 pesos from a money-lender called GG repayable by 12 instalments at an interest rate of 20% on the principal sum.  She planned to repay both loans with the income she was to earn in Hong Kong.

4.  On 9 November 2006 she arrived in Hong Kong to commence her job as a domestic helper for a Chinese household, but she never made any repayments to BS or GG because her family back home were then in need of her financial support as both her parents had medical problems while her siblings were still in school.  As a result both BS and GG have been harassing her family for repayments of their loans and threatened her parents to disclose her address in Hong Kong, and one night in October 2014 her parents’ house was vandalized by men of BS for which her parents made a report to the police captain of Barangay Suysuyan but to no avail.

5.  The threats from BS further escalated in 2015 when the applicant’s brother was beaten up by his gang with threats that they would kill her when she was located, and of which her parents made another report to the Barangay police captain when they were told that the matter would be investigated but again there was no result.

6.  Meanwhile the applicant’s employment as a domestic helper in Hong Kong was terminated on 15 April 2007 but in breach of her conditions of stay she failed to depart from Hong Kong and had overstayed until 15 March 2009 when she was arrested by police and was convicted of the offence of breach of condition of stay and sentenced to two months’ imprisonment suspended for 18 months.  In July 2009 she raised her non-refoulement claim for protection with the Immigration Department and was released on recognizance pending investigation of her claim.

7.  On 14 November 2011 she was arrested by police again but this time for possessing the identity card of another person, for which she was convicted on 13 December 2011 and sentenced to 12 months’ imprisonment.  Upon her discharge from prison she was granted recognizance by the Immigration Department pending the decision on her claim.     

8.  On 15 October 2012 her claim was rejected by the Director of Immigration (“the Director”) whose decision was later confirmed by the Torture Claims Appeal Board (“theBoard”).  The applicant sought judicial review of those decisions and on 17 October 2014 the matter was remitted to the Director for determination.  By then the applicant had had legal assistance under the Duty Lawyer Service and was notified that her claim for non-refoulement protection would be assessed under the Unified Screening Mechanism on allapplicable grounds including risk of torture under part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture, cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”), Cap 383 (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol (“persecution risk”).

9.  By a Notice of Decision dated 18 May 2016 the Director rejected the applicant’s claim on all those grounds after assessing the risks of harm from her creditors as low, that state protection is available to further lower or negate such risks, that Country of Origin Information (“COI”) show that the Philippines government has taken effective measures against gangsters and guerrilla groups including NPA, and that internal relocation alternatives are available so that it would not be unduly harsh for the applicant to return to live and work in other parts of the Philippines away from the threats of BS, GG and their gangs.    

10.  After receiving and considering further information received from the applicant pursuant to his invitation to submit any additional facts relevant to her non-refoulement claim on all applicable grounds including risk of violation of right to life under Article 2 of section 8 of the HKBOR (“BOR 2 risk”), the Director by a Notice of Further Decision dated 6 January 2017 again rejected the applicant’s claim.   

11.  By then the applicant already filed a Notice of Appeal/Petition to the Board against the earlier decision of the Director, which she did on 31 May 2016 and for which she attended an oral hearing on 2 February 2017 during which she gave evidence in person and answered questions put to her by the Adjudicator for the Board.  On 3 November 2017 her appeal was dismissed by the Board which also confirmed the Director’s decisions.

12.  In its decision the Board accepted that the applicant did borrow monies from both BS and GG and has not repaid any of their loans, but was of the view that she has exaggerated her claim of her fear of them given the lack of evidence from her of their political influence or connection with NPA and the fact that her family has remained living in the same house all these years despite the alleged attacks, and hence it did not accept that her creditors have harmed her family or issued threats to harm her, and therefore concluded that the risk of harm to the applicant at the hands of her creditors should she return to the Philippines to be extremely low.    

13.  On 13 November 2017 the applicant filed her Form 86 for leave to apply for judicial review of the decisions of both the Board and the Director, and in her supporting affidavit of the same date she set out her grounds for the intended challenge which can be summarized as follows:

(a)  procedurally unfair on the part of the Board for failing to conduct an oral hearing and/or to give her sufficient time to present her claim under BOR 2 risk; 

(b)  failure by both the Director and the Board to make full and proper inquiries of COI relevant to her case, being selective only in those in favor of the Immigration Department and rejecting or failing to consider properly or at all those produced by her;

(c)  error in law by both for failing to consider the concept of extended state acquiescence of the threats of torture by her creditors to her;

(d)  failure by the Board to properly and fairly assess the risks of harm to her on her return to the Philippines; and

(e)  procedurally unfair for the Board not to accept the evidence of a copy of the police report of the threats made to her parents in the Philippines.

14.  I should note that in her application the applicant also requested for an oral hearing which she attended on 9 March 2018 when she with my permission produced what she claims to be the original report of the Barangay police captain referred to in paragraph 13(e) above.  I shall now turn to consider her grounds.

15.  Ground (a) of the applicant can be easily rejected as wholly without basis since theBoard did conduct an oral hearing on 2 February 2017 during which the applicant was ableto give evidence and answer questions from the Board with the assistance of an interpreter, and which would have given her an entire month to prepare for her case regarding her claim under BOR 2 risk after her receipt of the Director’s Further Decision rejecting her such claim back in early January 2017.     

16.  As for Ground (b), without providing any particulars or specifics by the applicant, it is not possible to see in what ways did the Director or the Board fail to make full and proper inquiries of COI or being selective in their assessment of her claim, as it is clear that high standard of fairness does not entitle the applicant to just make the claim and then “simply sit back and require the Director to disprove it.”: CH v Director of Immigration [2011] 3 HKLRD 101, para 47.

17.  As pointed out by both the Director and the Board, the applicant’s claims about BS’s political influence and connection with NPA were all just based on her own speculation without any or any sufficient and objective evidence, but still the Director did refer to objective COI which may corroborate her assertion about corruptions in some government officials and police as well as terrorist activities of NPA in some parts of the Philippines, they also show that state protection and a functioning judiciary system are available for all citizens. I am simply unable to see any procedural unfairness in the process of their consideration of COI in the assessment of the applicant’s claim.     

18.  As for Ground (c), again without any particulars or specifics provided by the applicant, it is not clear as to how the concept of extended state acquiescence be relevant tothe threats from BS or GG, in particularly as pointed above in the absence of any evidence that they were the acts of the state or state agents or were acquiesced by the state. 

19.  Ground (d) is again such a broad and vague statement that is wholly without merit,in particularly in view of the Board’s findings that the applicant has exaggerated her claim of fears from her creditors, that it was a private localized monetary dispute between her and her creditors and given that her family has been able to still live fairly safely in their house all these years, and that in the absence of any evidence that any acts of her creditorswere acquiesced by the state, I am unable to find any error in law or procedural unfairness in its arrival of the conclusion that it would not be unduly harsh for the applicant as a highly educated and able person to return to live and work safely in some other cities of the Philippines away from her home town.

20.  As for the remaining Ground (e), as it was the duty of the applicant to present properly authenticated documentary evidence to the Board, and in the absence of such in the case of the alleged report of the Barangay police captain, the Board was entitled to express its doubt over its evidential value with good reasons including the facts that it is written in English, not on any form of official letterhead and does not contain any distinguishing marks or seal, and while the applicant at the hearing before me did produce another copy of what she claimed to be the original of that report, a close examination thereof shows that it is no more authentic than the previous one, nor does it advance her case any further, and I can see that those doubts of the Board over this document still remain valid.

21.  In the premises and for these reasons, I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and accordingly I refuse her leave application.

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