RE MINQUE MARY ANN DALUMPINES

CACV 114/2018

[2018] HKCA 411

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 114 OF 2018

(ON APPEAL FROM HCAL NO. 813 of 2017)

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JUDGMENT

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Hon Chu JA (giving the Judgment of the Court):

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 13 April 2018 refusing her leave to apply for judicial review.  The intended judicial review was against the decision of the Non-refoulement Claims Petition Office/ Torture Claims Appeal Board (“the Board”) dated 13 October 2017 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) rejecting her claim in respect of the BOR 2 risk ground[1] .

2.  The applicant is a national of the Philippines.  She came to Hong Kong on 7 May 2008 with a visa allowing her to work as a domestic helper.  She was last permitted to remain until 16 October 2012, or two weeks after the termination of her employment contract, whichever was the earlier. The applicant’s employment contract was terminated prematurely on 16 August 2012, but she did not depart within the prescribed time limit.  She overstayed and was arrested by the police on 14 March 2013.  She lodged her asylum claim at the United Nation High Commission for Refugees on 11 April 2013.  She lodged her non-refoulement claim under the Unified Screening Mechanism on 14 March 2014.

3.  The applicant’s non-refoulement claim was based on her fear that, if she was to be refouled to the Philippines, she would be harmed, or even killed, by (1) her abusive husband and/or (2) her creditor because of her failure to repay her debts.

4.  By a Notice of Decision dated 28 January 2015 (“the Director’s First Decision”), the Director rejected the applicant’s claim.  The Director considered that her husband had only assaulted the applicant on a single occasion and the intensity and the frequency of ill-treatment were low.  Given also that the applicant had separated from her husband since 2007, her perceived harm from her husband would unlikely materialize.  Furthermore, the threat made by her creditor was only verbal messages conveyed through her sister.  The creditor had never directly approached, contacted or inflicted any harm on her. The Director was not satisfied that the applicant’s creditor had any real and imminent intention to harm or even kill her.  The Director further took the view that the availability of state protection and the viability of internal relocation would lower or negate the perceived risk of harm.  In the Director’s First Decision, the Director covered the BOR 3 risk[2] , the persecution risk[3] , and the torture risk[4] . 

5.  The applicant appealed to the Board against the Director’s First Decision.  Having heard the appeal on 16 October 2015, the board considered that neither the applicant’s husband nor her creditor could be regarded as “state agent”.  Nor was there any evidence of “official acquiescence” (or “extended acquiescence”) on the part of the national government of the Philippines.  The ill-treatments said to have been suffered by the applicant did not satisfy the legal requirement of minimum level of severity. Further, internal relocation was a viable option for the applicant.  Additionally, and independent of the above reasons, the Board considered the applicant’s story unreliable, and she was neither an honest witness nor a genuine claimant.  By its decision dated 29 November 2016 (“the Board’s First Decision”), the Board dismissed the appeal.

6.  By a Notice of Further Decision dated 27 February 2016 (“the Director’s Further Decision”), the Director also assessed the applicant’s claim on the ground of the BOR 2 risk.  As the applicant did not provide any additional information for her BOR 2 risk, the Director’s assessment was based on the primary materials prepared for the other applicable grounds for her non-refoulement claim.  The Director decided against the applicant.

7.  The applicant again petitioned to the Board against the Director’s Further Decision.  The Board upheld the Director’s Further Decision on 13 October 2017 (“the Board’s Second Decision”).

8.  The applicant filed her Form 86 on 27 October 2017 seeking leave to apply for judicial review against the Board’s Second Decision.  While the Form 86 contained no grounds for the relief sought, the applicant’s supporting affirmation filed on the same date contained the following grounds:

(1)  The process was tainted with procedural impropriety in that the Director did not conduct a screening interview and the Board did not hold an oral hearing in respect of her BOR 2 risk claim;

(2)  The applicant did not understand the Director’s invitation to her to provide additional information in respect of her BOR 2 claim, hence she did not provide any; and

(3)  The Director and the Board failed to properly apply paragraph 2 of the UN Committee Against Torture General Comment No. 2, which obliges a State party (in this case, the government of the Philippines) to effect reforms and avenues to redress injustice.

9.  The Judge heard the leave application on 13 March 2018 and dismissed it on 13 April 2018.  After summarizing the facts and background of the case and giving due consideration to the Director’s and the Board’s decisions, the Judge gave the following reasons for refusing leave at [12] to [16] of the CALL-1 Form:

“12. For the applicant’s complain under (a) of not being given any oral hearing for her claim under BOR 2 risk, the Court of Appeal has held that there is no absolute right to an oral hearing as the question must depend on the standard of fairness required, the nature of the decision-making process in question, the procedural history of the matter including whether there has been an oral hearing before, the interest at stake and the importance of the decision, the issues involved and how the presence or absence of an oral hearing would affect the quality of the opportunity to make worthwhile or effective representations: ST v Betty Kwan [2014] 4 HKLRD 177 at paragraph 26.

13. It is clear that the applicant did before already attend screening interviews with Immigration officer as well as an oral hearing before the Board, although in the latter she chose to remain silent. Given the facts that she failed to submit any additional information or materials notwithstanding being invited to do so by the Director, nor did she do so when she was presented a second opportunity when she later filed her appeal to the Board, as well as the unequivocal earlier findings by both the Director and the Board of safe and reasonable internal relocation alternatives being available to her, I agree that they were entitled to decide that in the circumstances an oral hearing was not necessary, and I do not see any procedural unfairness in not affording one to the applicant in her subsequent claim under BOR 2 risk.

14. The second ground is closely related to the first. The applicant does not dispute that she did receive the letter dated 3 February 2017 from the Director inviting her to submit additional facts within 14 days before making his decision rejecting her claim on 27 February 2017 in the absence of any response from her. I do not find anything inadequate or unreasonable about the time given to the applicant by the Director. Likewise after filing her appeal to the Board on 9 March 2017 and until its decision more than six months later on 13 October 2017, the applicant had had ample opportunity but never submitted anything new regarding her claim under BOR 2 risk, nor did she ever ask for any oral hearing. Again I see no merit or basis in this ground of the applicant.

15. As for the last ground, it is clear that the Director did already take into proper consideration and assessment of objective and reliable COI in addressing the applicant’s concerns about the effectiveness of police and state protections available to her as set out in his list of references, as did the Board in its decision, and in the absence of any specifics from the applicant, I am again unable to see any basis that she may have in this ground.

16. Having considered all the decisions made in this lengthy process of assessing the applicant’s claim with rigorous examination and anxious scrutiny, I do not see any error in law or procedural unfairness committed by either the Director or the Board, or any failure on their part to apply high standards of fairness in the process.  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 I therefore refuse her leave application.”

10.  In the Notice of Appeal filed on 26 April 2018, the applicant sought to rely on the following grounds of appeal:

(1)  The Judge erred in holding that the Director’s and the Board’s respective failure to conduct screening interview and oral hearing in respect of the applicant’s BOR 2 claim satisfied the standard of fairness;

(2)  The applicant would face a genuine risk upon her return to the Philippines, as her enemies were still looking for her and she could not be relocated; and

(3)  She sought non-refoulement on humanitarian ground as she suffered physically and mentally due to domestic violence.

11.  By a letter dated 26 April 2018, the applicant agreed that this appeal could be heard by a two-judge court.

12.  In compliance with the directions given by the Registrar of Civil Appeals on 8 May 2018, the applicant submitted her Skeleton Submission on 20 June 2018.  In the Skeleton Submission, the applicant sought to rely on the following grounds:

(1)  The Board failed to seek appropriate clarification as to matters affecting the applicant’s credibility, including “the nature of confusion surrounding the factual basis of [her] claim and the incongruity between the grounds for non-removal and the factual basis of [her] non-refoulement claim”; and

(2)  The Board failed to conduct sufficient independent inquiry into the relevant country of origin conditions (COI) contrary to the high standards of fairness.

13.  We heard the appeal on 17 July 2018.

14.  We note that, by a letter dated 3 February 2017, the Director had invited the applicant to submit additional facts in support of the assessment of her BOR 2 risk.  The applicant admitted in her affirmation in support her leave application that she had received the letter, but claimed that she failed to submit any additional facts because she could not understand the letter. 

15.  Given that she did not respond to the invitation, the Director was entitled to proceed based on the primary materials available, which were obtained through the screening interview and also the information provided by the applicant with the assistance of her lawyers.  In her appeal to the Board, the applicant did not submit any additional information relevant to the assessment of her BOR 2 risk in her petition.  She also chose not to testify at the hearing before the Board.  Like the Director, the Board could only proceed on the basis of the primary materials available before it.  Even in this appeal, the applicant has not identified any additional information that she could have, but did not, provide to the Director or the Board.  The applicant has failed to demonstrate there was any unfairness in the process.  We do not accept that it is reasonably arguable to challenge the fairness of the process.

16.  On the facts of this case, we also cannot see any additional basis for advancing a case on the BOR 2 risk, independent of the BOR 3 risk, the persecution risk, and the torture risk.

17.  We do not accept there is any scope for the applicant to rely on any ground other than the applicable grounds for non-refoulement protection, such as what she referred to as the “humanitarian” ground.

18.  As regard her complaint of insufficient inquiry into COI, we note, in paragraph 19 of the Board’s First Decision, the Board made the point that since the applicant chose to remain silent at the oral hearing, there was no opportunity to hear her comments about the COI considered by the Board. In her application before the Judge and in this appeal, the applicant has not pointed to any materials that may contradict or suggest error in the Board’s treatment of the COI.  This ground is not reasonably arguable.

19.  Based on the COI, the Board, like the Director, considered state protection was available.  This being the case, there is no scope for finding risk of torture based on the concept of state acquiescence, or extended acquiescence, as the applicant has sought to argue.

20.  Given the findings that the applicant only sustained bruises from the domestic abuse without the need of attending medical treatment, we are of the view that it was open to the Director and the Board to conclude that there is no substantial ground for believing that the applicant would face a real risk of being subjected to ill-treatment that will meet the high threshold as required by law, see: Ubamaka v Secretary for Security (2012) 15 HKCFAR 743 at [172] to [174].

21.  Having considered the applicant’s skeleton argument as well as the materials before us, we can see no error of law or impropriety in the procedure in the process before the Director and the Board.  Nor is there any reasonably arguable basis to challenge the fairness of the process.  It should be emphasised that determination of the merits of the non-refoulement claim is a matter for the Director and the Board, not for the court.  We agree with the Judge that the intended judicial review is not reasonably arguable and has no prospect of success, and leave to apply for judicial review should be refused.

22.  Accordingly, we dismiss the appeal.