RE ESMEREZ MARIA NIEVA GELITO

CACV 200/2018

[2018] HKCA 611

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 200 OF 2018

(ON APPEAL FROM HCAL 743/2017)

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J U D G M E N T

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Hon Lam VP (giving the Judgment of the Court):

1.  This is the applicant’s appeal from the decision of Deputy High Court Judge Josiah Lam dated 21 May 2018 refusing leave to apply for judicial review. The facts of the case are set out in the decision of the judge in the CALL-1 Form published as [2018] HKCFI 1061.

2.  The applicant’s intended application for judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dated 4 August 2017 dismissing the appeal against the decisions of the Director of Immigration (“the Director”) dated 26 July 2016 and 19 May 2017 rejecting her claim for non-refoulement protection..

Background

3.  The applicant is a Filipina.  She last arrived in Hong Kong on 21 May 2012 with permission to remain as a visitor.  Her permission to remain was extended thrice and she was allowed to stay in Hong Kong until 9 July 2012.  She did not depart upon the expiry of her permission to remain and overstayed illegally.  She was arrested by the Immigration Department on 10 June 2014. Subsequently, on 13 June 2014 she was convicted for the breach of condition of stay by taking up unapproved employment and for overstaying.  She was sentenced to two months’ imprisonment.  She lodged her non-refoulement claim on 22 July 2014.  Her claim was based on the fear that, if she returned to the Philippines, she would be harmed or even killed by a loan shark because she was unable to repay her loan.

4.  By a notice of decision dated 26 July 2016, the Director rejected the applicant’s claim.  The Director’s decision covered the BOR 3 risk[1], the persecution risk[2], and the torture risk[3].

5.  By a notice of further decision dated 19 May 2017, the Director also assessed the applicant’s claim based on her BOR 2 risk[4], and determined the risk against her.

6.  The applicant appealed to the Board against the Director’s decisions.  An oral hearing was held on 6 June 2017. After hearing the applicant, the Board found that her evidence was generally credible and reliable.  However, the Board found no evidence that the loan shark was acting in any official capacity or that his actions were legally permissible in the Philippines.  The applicant was not targeted by the state or the state agents. Although the Board had some concerns about the violation of human rights in the Philippines and the reputation of the Philippine National Police, it concluded that the country could offer effective protection to the applicant if she returned.  The Board also took the view that internal relocation was a viable option for the applicant.  The Board dismissed the appeal on 4 August 2017.

The deputy judge’s decision

7.  On 9 October 2017, the applicant filed a form 86.  The intended application for judicial review was against the decision of the Board, as well as the first decision of the Director.  In the form 86, the applicant sought to rely on the following grounds for seeking relief:

(a)  The Director failed to appreciate the presence of state acquiescence in her case;

(b)  The Director failed to examine or give sufficient weight to the extended concept of state acquiescence;

(c)  The Director failed to give weight to the country of origin information materials which suggested the prevalent corruption in the Philippine National Police;

(d)  The Director failed to attain the high standard of fairness;

(e)  The Director erred in failing to hold that the Office of Ombudsman, the Citizen’s Charter and the guidebook of human rights were only speculation, rather than reality.

8.  The applicant said the Board also erred in law in a similar way as the Director did.

9.  After an oral hearing on 2 May 2018, the judge dismissed the applicant’s application on 21 May 2018. After summarizing the background of the case, and having due regard to the decisions of the Director and the Board, the judge gave his reasons for refusing leave to apply judicial review in para 35 to 46 of the CALL-1 form:

“ 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’.

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.”.

The appeal

10.  The applicant filed a notice of appeal on 1 June 2018.  In the notice of appeal, the applicant put forward the following grounds of appeal:

“ 1. The learned Judge has erred in law, fact and logic in concluding that there was no need for either [the Board] or [the Director] to consider the presence of the State Acquiescence;

2. The learned Judge erred in finding that there was State Protection available despite that the alternative avenues to seek justice in the Philippines are mere speculation.

3. The learned Judge erred in concluding that there was procedural fairness despite that I was not legally represented during the hearing.”

11.  In compliance with the directions of the court, the applicant lodged her skeleton submission on 15 August 2018.  The applicant elaborated in the skeleton submissions that the government of the Philippines had breached its duty of due diligence in that it failed to provide effective mechanism to protect the applicant.  The applicant also repeated the last two grounds in her skeleton submissions.

12.  We heard the appeal on 12 September 2018.

Discussion

13.  Since this is an appeal, we should focus on the decision of the judge. In the absence of any error on the part of the judge, this Court should not intervene as if it was sitting at first instance considering the case afresh.

14.  Further, as held in Re Moshsin Ali [2018] HKCA 549, the decision of the Board had overtaken the decisions of the Director. Judicial review, if leave is granted, should focus on the decision of the Board.

15.  The gist of this appeal is whether the judge committed the error as alleged by the applicant in the grounds of appeal. The first two grounds related to the judge’s assessment of the Board’s decision in respect of state acquiescence and state protection.

16.  In our judgment, the applicant does not have any basis to rely on the concept of state acquiescence. As held in TK v Michael Jenkins HCAL 126/2010, 21 October 2011, the duty of diligence in the context of state acquiescence is not the same as a duty of reasonable protection. It only arises when the government knows or have reasonable grounds to believe that acts of torture or ill-treatment are being committed by non-state actors and takes no action to prevent, investigate or prosecute. See also the discussion in AM v Director of Immigration [2014] 1 HKC 437.

17.  The acts of torture or ill-treatment in question has to reach a minimum level of severity, generally involving actual bodily injury or intense physical or mental suffering: Ubamaka v Secretary for Security (2012) 15 HKCFAR 743 at [173]. The finding of the Board at [24] of its decision was that there was no substantial ground for believing that the applicant would suffer such harm upon refoulement.

18.  Further, as held in AM v Director of Immigration [2014] 1 HKC 437 at [64] and [65], the failure to exercise due diligence must be so gross or of such a scale that it enables those persecuting the applicant to do so with impunity. The failure could then be effectively regarded as providing encouragement or de facto permission to those engaged in the acts of torture.

19.  There is nothing in the two authorities cited by the applicant (Re MI CACV 69/2014, 26 September 2014 and MDB v Betty Kwan HCAL 18/2012, 21 March 2014) to cast any doubt on the above principles.

20.  The materials provided by the applicant in the present fall short of what is required.  

21.  In our judgment, the judge was entitled to hold that the Director and the Board were justified in coming to the conclusion that state protection was available to the applicant upon her return to the Philippines. The judge duly took account of the lack of action by the local police and adequately addressed the same at [41] of the CALL-1 Form.

22.  Judicial review is not an avenue for revisiting the assessment of the Board and the Director in the hope that the court may consider the matter afresh even in the absence of any legal error: see Re Lakhwinder Singh [2018] HKCA 246; Re Md Himel also known as Muna Sarkar also known as Sahen [2018] HKCA 279; Re Munir Qaiser [2018] HKCA 341; Re Daljit Singh [2018] HKCA 328; and Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400.  In our view, there is nothing that warrants the court’s intervention in respect of the findings of the Board on public law grounds.

23.  Finally, the applicant complained that the process was unfair because of the lack of legal representation during the hearing.  The applicant did not rely on this ground in the Form 86.  In any event, the high standard of fairness does not prescribe that a non-refoulement claimant has absolute right to legal representation at all stages of the process: see Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Tariq Farhan [2018] HKCA 17; and Re Lopchan Subash [2018] HKCA 37.  The applicant had already had legal representation provided by the Duty Lawyer Scheme during the proceedings before the Director.  We do not find it reasonably arguable to challenge the fairness of the process due to the lack of legal representation during the hearing before the Board or the court below.

24.  Having considered the submissions of the applicant in light of the materials before us, we find the judge’s observations to be justified.  We do not see any legal error of law or procedure in the proceedings before the Board and the Director.  Nor is there any reasonably arguable basis to challenge the fairness of the process. Determination of the merits of a non-refoulement claim is a matter for the Director and the Board, not for the court.  We agree with the judge that leave to apply for judicial review should be refused.

25.  For these reasons, we do not see any prospect of success in the intended application for judicial review.  We dismiss the appeal accordingly.