ESMEREZ MARIA NIEVA GELITO v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL743/2017

[2018] HKCFI 1061

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 743 of 2017

Application for Leave to Apply for Judicial Review

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

Following;

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

Leave to apply for judicial review be refused.

Observations for the Applicant

Background

1.  The Applicant is a Philippines national.  She is now aged 46 (DOB: 11 May 1972). 

2.  The Applicant claimed that she would be harmed or killed by a loan shark in her country because she was not able to pay off a debt she owed him.

3.  The Applicant had worked in Hong Kong in the previous years. She married a man called Bernard in 2007 here. Bernard himself was only on dependent visa. In late 2007, the Applicant could no longer obtain visa to stay in Hong Kong. She went back to the Philippines.

4.  In 2012, the Applicant borrowed 100,000 Philippine pesos from three friends and a loan shark. She then came to Hong Kong in May 2012 on visitor visa. After extension, she was allowed to stay until 9 July 2012.

5.  The Applicant intended to be reunited with Bernard. However, she could not secure permanent status to stay here. On the other hand, the loan shark looked for her in the Philippines for repayment. The loan shark threatened the Applicant’s family that he would kill her if she did not pay up the debt. The Applicant tried to raise money in Hong Kong to pay the loan shark. The last payment was made in October 2012. However, the money was not even enough to cover the interests.

6.  In early 2013, the Applicant was separated from Bernard in Hong Kong.

7.  The loan shark’s harassment in the Philippines had subsided for a year since September 2014. It resumed in September 2015. The Applicant’s family reported the matter to the police but the police never investigated properly. The Applicant’s family did not seek assistance from the higher authorities in the Philippines.

8.  The Applicant was told by her brother Hayden that it would be dangerous for her to go back if she had no money to repay the loan shark. Hayden said the debt collectors came frequently and uttered death threats. The Applicant heard one of her villagers had been killed by the debt collectors after being unable to repay them.

9.  The Applicant did not think internal relocation was possible due to the extensive network of the loan shark in the country. She applied for non-refoulement protection here.

10.  In the ensuing two-tier screening process (“the Unified Screening Mechanism”), the Director of Immigration (“the Director”) and the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”) respectively refused the Applicant’s claim with respect to all the four applicable grounds: (i) risk of torture,[1] (ii) risk of persecution,[2]  (iii) risk of torture or cruel, inhuman or degrading treatment or punishment (CIDTP risk or BOR3 risk)[3]  and (iv) risk of violation of the right to life (BOR2 risk)[4].

11.  On 9 October 2017, the Applicant applied for leave for judicial review.

Chronology of events

12.  Things happened in this order: –

1993-Mid 2007	The Applicant worked as a domestic helper in Hong Kong.
2007-2-27	The Applicant married Bernard in Hong Kong.
2007-10-3	The Director refused the Applicant’s application for status change. The Applicant remained in Hong Kong as a visitor.
2007-12-5	The Applicant went back to the Philippines.
2012-5-21	The Applicant came to Hong Kong as a visitor. After several extensions of stay, she was required to leave after 9 July 2012.
2012-7-10	The Applicant began overstaying in Hong Kong.
2014-6-10	The Applicant was arrested by the Immigration Department for overstaying. She subsequently applied for non-refoulement protection.
2016-4-20	The Director held a screening interview with the Applicant.
2016-7-26	The Director refused the Applicant’s claim with respect to these three applicable grounds: (i) torture risk, (ii) persecution risk, and (iii) CIDTP risk (or BOR3 risk).  [“the Director’s decision”]
2017-5-2	The Director invited the Applicant to submit additional facts for the consideration of a fourth applicable ground: life risk (or BOR2 risk).
2017-5-16	The Applicant failed to submit additional facts by deadline or thereafter.
2017-5-19	The Director refused the Applicant’s claim with respect to the fourth applicable ground: life risk (or BOR2 risk).  [“the Director’s further decision”]
2017-6-6	The Applicant appeared in person before the Board for appeal.
2017-8-4	The Adjudicator refused the Applicant’s appeal with respect to the four applicable grounds.  [“the Board’s decision”]
2017-10-9	The Applicant applied for leave for judicial review.

Respondents

13.  The Unified Screening Mechanism is a two-tier screening process.  The Director screens an applicant’s non-refoulement claim first; the applicant may appeal to the Board which deals with his/her case on a rehearing basis.

14.  In Form 86, the Applicant listed the Director and the Adjudicator as proposed respondents.

15.  The Adjudicator did not act in his personal capacity. He represented the Board.  Therefore, the Applicant is actually suing the Director and the Board.  The Director is the first putative respondent; the Board is the second putative respondent.

16.  An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.[5]

17.  In the present case, the two Director's decisions (dated 26 July 2016 and 19 May 2017 respectively) were more than three months old by the time the Applicant filed her current application on 9 October 2017. However, the Applicant should not seek judicial review against the Director's decisions before the Board rendered its appeal decision on 4 August 2017. Therefore, I consider there is a good reason to allow the Applicant to apply for leave for judicial review against the two Director's decisions albeit late on 9 October 2017; the application against the Board's decision was made within time.

Director of Immigration (the Director)

18.  In the Director’s decision dated 26 July 2016, the officer noted that the Applicant had not been inflicted any harm or injury by her creditors. The officer did not accept the debt collectors really wanted to harm or kill the Applicant for her failure to repay the loan. There was no evidence that the Applicant was subjected to any real risk of being harmed or killed by her creditors should she return to the Philippines.

19.  The officer accepted there was much corruption in the Philippines but citizens could still complain the police. There was the Sandiganbaya (an anti-corruption court at the appellate level). The alleged inaction of the Kabankalan City Police was not representative of the whole police force in the country. The Applicant’s family had failed to report their complaints to the higher authorities. They could have complained to the Ombudsman, for example. The officer considered the dispute between the Applicant and her creditors was a private matter between themselves. The state was not involved in or indifferent to or providing encouragement to the creditors. The officer considered reasonable state protection was available to the Applicant in her country.

20.  The officer found no substantial grounds to believe the creditors had nationwide influence and resources to go after the Applicant everywhere in the Philippines. The Applicant’s perceived risk of harm, if any, was only a localised one. Reasonable internal relocation was available in the Applicant's case.

21.  The officer did not accept the Applicant faced a genuine and substantial BOR3 risk. There was no well-founded persecution risk either. There were also no substantial grounds for believing the Applicant would be subjected to torture upon her return to the Philippines.

22.  The officer refused the Applicant’s claim with respect to these three applicable grounds: (i) torture risk, (ii) persecution risk, and (iii) CIDTP risk (or BOR3 risk).

23.  Later, the Director wrote to the Applicant inviting her to submit additional facts for the consideration of the fourth applicable ground, i.e. life risk (or BOR2 risk). However, the Applicant did not respond by the deadline of 16 May 2017 or thereafter.

24.  In the Director’s further decision dated 19 May 2017, the immigration officer considered that the Applicant failed to establish a personal and real risk of her rights under the HKBOR being violated (including right to life under BOR2).

25.  The officer refused the Applicant’s non-refoulement claim with respect to the fourth applicable ground: life risk (or BOR2 risk).

TCAB/NCPO (the Board)

26.  The Adjudicator found the Applicant’s evidence generally credible and reliable. However, he considered the loan shark in question was not dealing with the Applicant in any official capacity. There was no state instigation or state acquiescence of any form in the Applicant’s case. There was no torture risk.

27.  The Adjudicator considered neither the Applicant nor her family had been harmed or tortured by the debt collectors. There were no reasonable grounds for believing that the Applicant would be subjected to ill-treatment or serious harm in the Philippines. There was also no evidence of a consistent pattern of gross, flagrant or mass violation of human rights in the country. The Adjudicator considered the Applicant’s family could have complained the matter to the Ombudsman if the local police did not take action. Reasonable state protection was available to the Applicant in the Philippines. The Adjudicator considered reasonable internal relocation was also available to her.

28.  On 4 August 2017, the Adjudicator refused the Applicant’s non-refoulement claim with respect to all the four applicable grounds.

Grounds of judicial review

29.  In support of her application, the Applicant submitted an affirmation [Folio 2] with exhibits “EM1” – “EM7”.

30.  In Form 86 [Folio 1], the Applicant stated her grounds of applying leave for judicial review against the Director and the Adjudicator.

31.  To summarize, the Applicant complained the Director (i) failed to properly consider state acquiescence (including extended state acquiescence); (ii) failed to properly consider country-of-origin information (COI) regarding the corrupt police condition in the Philippines; (iii) was wrong to find there was reasonable state protection; (iv) failed to attain the high standards of fairness and (v) failed to render reasonable decisions.

32.  As against the Board, the Applicant accused the Adjudicator erred in similar ways as the Director did.

Court hearing

33.  The Applicant requested a hearing. It took place on 2 May 2018. The Applicant confirmed that she had stated all the grounds of application in Form 86. She made no elaboration.

34.  The Applicant also confirmed that she had placed all information and materials before the Director and the Board for their consideration of her non-refoulement claim.

Discussion

35.  Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

36.  A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant.  Therefore, high standards of fairness must be achieved.  The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[6]

37.  The Applicant made similar attacks against the Director and the Adjudicator which can be grouped as (i) - (v) in paragraphs 31-32 above.

38.  It is convenient to deal with these three grounds together: (i) failure to properly consider state acquiescence; (ii) failure to properly consider country of origin information (“COI”) and (iii) wrong view on state protection.

39.  The Director's reports and the Adjudicator’s report showed the Director and the Adjudicator were acquainted with the law and the facts of the Applicant’s claim. They were alive to the issues. They had considered the COI relevant to the Applicant’s case carefully and in a balanced manner.

40.  Both the Director and the Adjudicator found the loan shark was not a state official or performing with state endorsement. There was no state instigation of the perceived risk. The Director and the Adjudicator were right.

41.  The Applicant's brother had complained to the Kabankalan police. The response was negative. However, that was only local police. It was not representative of the whole police force in the country. If local police did not take proper action to protect the Applicant and her family, the latter could and should have complained to the higher authorities, for example, the Ombudsman. However, they did not. The Director and the Adjudicator considered, independently and rightly, that there was no state acquiescence and there was reasonable state protection available to the Applicant.

42.  Complaints (i) - (iii) fail against both the Director and the Adjudicator.

43.  Regarding complaint Complaints (iv) - (v), the Applicant accused the Director and the Adjudicator failed to adhere to high standards of fairness and that their decisions were not reasonable.

44.  I have reviewed the Director’s reports and the Adjudicator’s report under ‘rigorous examination and anxious scrutiny’. I am satisfied the Director and the Adjudicator were acquainted with the facts and the law. They were alive to the issues. Each had engaged in joint endeavour with the Applicant in the inquiry process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate her case; which was considered carefully and independently by the Director and the Adjudicator. They also considered the relevant COI in a balanced manner. They assessed the facts carefully and applied the law correctly. They made no errors of law. There was no procedural unfairness.

45.  In my judgement, the Director and the Adjudicator were entitled to render their findings, conclusions and decisions which were not Wednesbury unreasonable. The Director and the Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.

Conclusion

46.  The Applicant's complaints are not reasonably arguable either against the Director or the Board. She has no realistic prospects of success in the sought judicial review. I therefore refuse to grant her leave for the review.

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