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HCAL 1269/2018
[2020] HKCFI 2710
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1269 OF 2018
BETWEEN
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Zabala Evangeline Bea |
Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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and |
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Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge P Li:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
1. The applicant was born on 18 November 1973 in Daet, Camarines Norte, Philippines. Her native language is Tagalog. She could read and speak English. She received education up to college level. She had 13 years work experience. She and her family had no affiliation with any political group in the Philippines.
2. She was separated from her husband. Her son and daughter lived with her husband. She had lost contact with her mother. Her father and brother were deceased.
3. She was a domestic helper in Hong Kong from 2005 to 2011. Her contract was terminated in November 2011. She overstayed in Hong Kong since 6 December 2011. She was arrested by the police in January 2014. She filed a non-refoulement claim in February 2014. [1] She was released on recognizance in December 2014.
4. She cohabited with a male Filipino torture claimant in Hong Kong. They had a son born on 23 October 2015.[2]
Background
5. She feared that her life might be in danger if she returned to the Philippines. The reason being that while she was on holiday in the Philippines in March 2011, she and her brother saw her neighbor shot dead near her home. Her brother could recognize the assailants but did not know their names or background. She later learned that they were a drug syndicate. She believed that her brother was beaten to death after identifying one of the assailants in the trial in August 2011. The police had not confirmed this.
6. She declined to give evidence in the trial as she had already returned to Hong Kong since April 2011. In fact, she could not identify any of the assailants.
7. The Director of Immigration rejected her claim on 19 May 2015 and 28 March 2017. The TCAB rejected her appeal on 28 February 2017 and 1 June 2018.
The decision of the Director
8. The Director found that there was no genuine and substantial risk of harm for the following reasons:
a. The applicant only received threatening messages in Hong Kong. There was no physical violence.
b. There were stones thrown to her mother’s house but no one was injured. There was no evidence that her brother’s death was linked to the alleged drug syndicate.
c. The applicant could leave for Hong Kong freely in April 2011. The drug syndicate never attempted to harm her before that.
d. There was reasonable state protection in the Philippines according to the COI.
e. The applicant had 13 years work experience. She was educated up to college. She spoke Tagalog and English. It was not unduly harsh for her to relocate to Manila or other cities.
9. There was no ill-treatment of a minimum level of severity as required under BOR 3. This claim failed.
10. The applicant was not within the categories of persons as defined in the Refugee Convention. There was no state involvement. The fear was not well founded. This claim failed.
11. There was no severe pain or suffering as defined under s. 37U (1) of the Immigration Ordinance. There was no public official involved nor was any conduct under their instigation or acquiescence. The applicant was not targeted by the government and there was reasonable state protection. This claim failed.
The decision of TCAB
12. The applicant attended a hearing on 27 July 2016. She was assisted by a Tagalog interpreter. She confirmed the accuracy of the NCF, the questionnaires and the record of interview.
13. During the hearing, the applicant confirmed that she had no contact with her family in the Philippines since September 2011. She did not receive any threatening message since then. She would not return to her home village as the house was destroyed by the drug syndicate. In 2015, the victim family still wanted her to give evidence in the trial.
14. The TCAB dismissed her appeal on all grounds on 28 February 2017. The reasons are as follows:
a. In relation to persecution risk, the adjudicator found that the applicant was never assaulted. She stopped receiving death threats after changing phone number in 2011. She could not recognize any suspects. She could not give any damning evidence. While there might be problems with the police in the Philippines, there was on-going efforts for improvement. The applicant failed to establish a well-founded fear of persecution. The applicant’s story did not amount to persecution for a convention reason.
b. In relation to CIDTP risk under BOR 3, the adjudicator found no ill-treatment amounting to a minimum level of severity. In fact, the applicant had no contact with the drug syndicate since 2011. Given the overall circumstances, there was no genuine and substantial risk of severe ill-treatment. This claim failed.
c. In relation to torture risk under the Immigration Ordinance., there was no torture as defined. There was no state involvement. There was no substantial ground for believing that the applicant would be subject to torture. This claim failed.
15. The adjudicator found that the threat to the applicant was localized. The last threat was made in 2011. It was far-fetched that the drug syndicate would trace her throughout the country knowing that she could not give any useful evidence against them. Given the age and experience of the applicant, it was not unduly harsh for her to relocate to other cities in the Philippines.
16. Pursuant to the invitation by the Director, the applicant elected to be further assessed under BOR 2—right to life—in February 2017. The Director rejected this claim as the applicant only repeated the basis of claim already submitted. Those facts did not establish a personal and real risk of any violation of BOR 2.
17. The TCAB rejected her appeal in relation to the claim of BOR 2 on 1 June 2018. The adjudicator relied on the findings of fact in the previous decision dated 28 February 2017. He concluded that there was no evidence that the applicant was targeted by the Philippines government. There would not be any risk to her under BOR 2 if refouled.
Judicial review
18. The applicant filed an application for leave for judicial review on 4 July 2018. In her affirmation in support, she alleged that the decisions of the Director and the TCAB were irrational in the public law sense. There were procedural errors. There was failure to meet the greater care and duty owed to unrepresented applicants. She had no legal assistance during the TCAB hearing and leave application. She was not conversant in English and the decisions were not interpreted to her.
19. She did not request for an oral hearing. The application is therefore considered on the papers.
20. About the decisions of the Director and the TCAB, the applicant did not point out any specific errors. In my view, the evidence as summarised above fully support the decisions. I am satisfied that there was no error of law nor was there any procedural irregularity. They are not irrational.
The issue of language
21. As to the issue of language, the applicant alleged in her affirmation that she only spoke Ilocano and a bit Tagalog. She did not know English or Chinese [3]. This is contradictory to the answers in the NCF. In questions 16 and 17, she confirmed that her first language was Tagalog and she could speak English. [4]
22. Further in the NCF, there was confirmation that she was assisted by two liaison officers of the Duty Lawyer Scheme and also a lawyer.[5] There was an interpreter present translating the whole document into Tagalog and the applicant confirmed that she understood the full content.[6] In fact, the applicant signed and confirmed that the content and documents were true and correct.[7]
23. During the screening interview held on 7 May 2015, the applicant was assisted by an interpreter and a lawyer.[8]
24. During the hearing before the TCAB, the applicant was assisted by an interpreter.[9]
25. The applicant was conversant in Tagalog. She could understand English. She was assisted by an interpreter in compiling the NCF, in the screening interview and the TCAB hearing. In my judgment, there is no substance in this ground.
The issue of legal representation
26. It is well settled that a claimant under the USM does not have an absolute right to free legal representation at all stages of the proceedings.[10] The applicant had legal assistance in presenting her case to the Director. She repeated her version before the TCAB. She confirmed that her case presented to the Director were correct and she had nothing to add. The adjudicator reminded the applicant the basis of her claim. Given the circumstances, I do not find any irregularity even though she was not represented before the TCAB.
27. The applicant also argued that she was advised not to rely on BOR 2 initially by the Duty Lawyer Scheme (DLS). The Director should have referred her case to the DLS when they invited her for further submission. This prevented her from having prompt legal advice.
28. As explained above, a claimant does not have absolute right of legal representation at all stages of the proceedings. In my view, the applicant could have contacted the DLS on her own when invited to make further submission in relation to BOR 2. The Director has no duty to do so.
29. The applicant alleged that she did not receive any letter, dated 17 February 2017, from the Director inviting further submission in relation to BOR 2. According to the Director, he received a letter from the applicant on 27 February 2017 in response.
30. In any event, the Director had considered two further submissions from the applicant dated 14 & 27 February 2017 [11] before making the decision. The TCAB decided that there was no need for an oral hearing as no new material was disclosed in both further submissions.
31. The applicant argued that she was not given a translation of the NCF. According to the NCF, it was interpreted to the applicant. She signed to confirm the content was true, complete and accurate.[12] The fact that there was no translation of the NCF does not give rise to any unfairness. In fact, the applicant indicated that she could speak English. She should seek assistance on her own if in doubt.
32. The applicant claimed that she prepared the affirmation without legal representation. The affirmation was written in English, it was well structured and comprehensible. I am sure the applicant has sufficient assistance so far as language is concerned.
The issue of COI
33. The applicant complained that the Director did not explain the balancing exercise in considering the COI.
34. The Director set out in detail the content of the COI considered.[13] This material was from authentic sources. While there were negative and positive comments, the Director concluded that there was reasonable state protection. The guiding principle is whether there was an effective criminal justice system which would prosecute those who break the law. In the operation of the system, the state would not discriminate against the claimant. This is a matter of subjective assessment. It is difficult, if not impossible, to explain the thought process in minute steps.
35. I agree with the observation of the adjudicator in considering the COI: “It is apparent that the Philippines has long had problems with endemic corruption and under performance with the police and other government organs. The COI does refer to recent and ongoing efforts to put in place strategies and programmes to bring about improvement. However, all nationals are subject to the same imperfect system of policing and general governance.”[14]
36. The Director had listed the sources of the COI in the appendix. The applicant could always counter check through the internet if she wished. I do not think there is any irregularity in this respect.
Conclusion
37. For the reasons above, the Applicant’s claim is not reasonably arguable. There is no realistic prospect of success. I refuse leave for judicial review.
Dated the 23rd day of October 2020
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(Mike Mak) |
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for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must: |
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). |
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Sent to the Applicant
on 23 October 2020
Zabala Evangeline Bea
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 23 October 2020
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 1611/15/5/143/F103; and
BOR 390/17/4/39/F28
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1365/14 and RBCZ 9000487/17 (Formerly RBCZ/ 3179/14)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Her non-refoulement claim was under the USM on persecution risk under the Refugee Convention; CIDTP risk under BOR 3 and torture risk under Part VIIC of the Immigration Ord.
[2] The son is the claimant in HCAL 1650/2018.
[3] See paragraph 9 of the affirmation.
[4] See Exh. C of the affirmation.
[5] See Part 5 of the NCF.
[6] See Part 6 of the NCF.
[7] See confirmation B, Part 7 of the NCF.
[8] See Exh. D of the affirmation, at page 1.
[9] See paragraph 14 of the decision of the TCAB.
[10] See Zafar Muazam [2018] HKCA 176, at paragraph 22.
[11] The submission dated 14 February 2017 was in relation to the claim on behalf of her son. See decision of director in HCAL 1650/2018, paragraph 1. The submission dated 27 February 2017 was believed to be in response to the Director’s invitation for further submission on BOR 2.
[12] See confirmation B, Part 7 of the NCF.
[13] See paragraph 24 of the decision of the Director dated19 May 2015.
[14] See paragraph 55(f) of the decision of TCAB dated 28 February 2017.
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