RE AV

HCAL 134/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 134 OF 2012

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J U D G M E N T

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1.  This is an application for leave to apply for judicial review.  The applicant seeks judicial review of the refusal dated 26 October 2012 by an adjudicator of her petition to the Chief Executive dated 3 October, 2012.  She petitioned to the Chief Executive against the determination by the Director of Immigration dated 20 September 2012 refusing her claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”).

The facts of the claim

2.  She said in her affidavit in support of the application that she was born in the Philippines.  She entered Hong Kong as a foreign domestic helper on 25 August 2008 with the permission of the Director of Immigration.  Her employment contract expired on 25 August 2010.  She was however afraid of going back to her country and therefore overstayed in Hong Kong.  She was arrested by the police on 21 June 2011 and was released on recognisance on 2 August 2011.  However, she did not attend any screening interview of the Immigration Department.  She explained that she was afraid that the department would finish processing her CAT claim and send her back to her country.

3.  She summarised the basis of her claim in her affidavit.  She said she was from a municipality X of a province Y in the Philippines.  She thought that there was no justice for showing honour at that place.  The myth and idiom were in the hearts of the people there.  The People there were raised in the belief that once a person hurt or killed another person, the first person must pay for the deed with his/own life.  She alleged that she drove a car and had an accident.  Her passenger friend was killed.  As a result, everybody put the blame on her and said that she had killed her friend.  Everybody thought that she had to die for it.  She was scared that she could not survive in the Philippines and therefore could not go back there. 

The events leading to the decision of the Director of Immigration

4.  The notice of determination of the Immigration Department showed that between 20 December 2011 and 6 March 2012, six briefing sessions were arranged for the applicant, but she failed to turn up at any one of them on the ground of sickness, no travelling expenses or forgetfulness.  She also failed to report recognizance between 6 March 2012 and 13 July 2012. 

5.  The department, in view of her repeated failure to attend the arranged briefing sessions, served on her a Notice to Person Making a Claim under Article 3 of the Convention and a Questionnaire for Persons Who Have Made Claims under Article 3 of the Convention when she reported recognizance on 31 July 2012.  The covering letter advised her that she might apply for legal assistance from the Duty Lawyer Service.

6.  The department sent her another letter dated 21 August 2012 reminding her to return the completed questionnaire on or before 28 August 2012 failing which the department would proceed to determine her claim on the basis of available information.  The letter advised her again that she could obtain legal assistance from the Duty Lawyer Service. 

7.  The department served on her personally another letter dated 28 August 2012 advising her that she had not sent in the completed questionnaire or asked for any extension of time to do so.  She was asked to contact the department on or before 4 September 2012 and that she could seek advice from the Duty Lawyer Service.  She was also told that if the department did not hear from her by 4 September 2012, the department would proceed to determine her claim on the basis of available information.  The department also contacted her by phone on the same date and she promised to return the completed questionnaire on 4 September 2012.

8.  The department, not having received her the completed questionnaire on 4 September, sent her another letter dated 5 September 2012 informing her that the department would proceed to determine her claim on the basis of available information because of her continued failure to return the completed questionnaire and she had been given sufficient time and opportunities to do so.

9.  She phoned the department on 5 September 2012 asking for the provision of a Tagalog interpreter to assist her to complete the questionnaire.  Arrangement was then made for her to attend the department’s office on 11 September at 2:00 p.m. to complete the questionnaire with assistance of a Tagalog interpreter.  She however failed to show up and could not be contacted by phone.  The department then proceeded to determine her claim on the basis of available information.   

10.  The facts of her claim in this application as referred to in paragraph 3 above are still the same as those available to the Director of Immigration which were provided by her in her CAT claim made on 6 July 2011.

Complaint for lacking of hearing before the adjudicator

11.  She also complained in her affidavit that the adjudicator had rejected her petition without an oral hearing and the rejection was procedurally unfair and contrary to the guidelines given by the Secretary for Security.

Decision

12.  The applicant, in order to succeed in her CAT claim, has the burden of proving that there are substantial grounds for believing that she would be in danger of being subjected to torture if repatriated to the Philippines.

13.  Torture is defined in Article 1 of the Convention as follows:

“Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”

14.  The Director, in the notice of determination dated 20 September 2012, advised the applicant that there was no evidence proving that there was any official involvement in the alleged threats by the family and relatives of her allegedly deceased friend.  Hence, her claim fell outside the definition of torture in Article 1 of the Convention.  The Director further pointed out that she had failed to provide any supporting evidence to establish a foreseeable, real and personal risk of torture in the Philippines if she should be returned there.

15.  The adjudicator in his decision dated 26 October 2012 also pointed out that the applicant’s case involved a private matter between the applicant on the one hand and the family and relatives of her allegedly deceased friend on the other.  There was not the slightest evidence of instigation from or involvement by the Government of the Philippines or any person acting in an official capacity there.  The adjudicator further pointed out that the applicant was able to depart lawfully from the Philippines for Hong Kong in 2008 without any hassle or problem caused by her national government or any person acting in an official capacity which indicated that she was not a target for torture by the government or anyone in an official capacity.

16.  In the light of the definition of torture, I do not think the decision of the adjudicator can be faulted as the applicant has not suggested that her problem had anything to do with her national government or anyone acting in an official capacity in her country.  I would further point out that there is not even the suggestion or hint of acquiescence by her national government or anyone in an official capacity to the conduct of those against whom she complained.

17.  I also consider this case a simple and straightforward one.  In the light of the repeated opportunities and advice given by the Immigration Department to her to explain her case and that her case still remains as summarized in paragraph 3 above, I do not think there is anything in her case that still requires clarification or elaboration by her.  There is also nothing to suggest that the conduct of the Philippines Government in treating her citizens would lend credence to the applicant’s claim.  In the premises, I do not think the absence of an oral hearing conducted by the adjudicator has prejudiced the applicant’s claim or that the adjudicator has thereby failed to adopt a high standard of fairness as required by the Court of Final Appeal in Secretary for Security v Prabakar  (2004) 7 HKCFAR 187 in dealing with the petition. 

18.  In the premises, I dismiss this application.