NICOLAS MAY JOY MACADANGDANG v. TORTURE CLAIMS APPEAL BOARD / NON REFOULEMENT CLAIMS PETITION OFFICE

HCAL 537/2019

[2022] HKCFI 1669

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 537 of 2019

Application for Leave to Apply for Judicial Review

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

Following;

	consideration of the documents only;            or
	consideration of the documents and the Applicant being absent in open court;

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge To):

Introduction

1.  This is the Applicant’s application by Form 86 for leave to apply for judicial review of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 14 February 2019 (the “Decision”).

2.  The Applicant is a national of the Philippines, now aged 33. She last entered Hong Kong as a visitor and was allowed to stay until 23 March 2017.  She overstayed and then surrendered to the Immigration Department on 16 June 2017.  She lodged a non-refoulement claim by written significations dated 8 September and 25 October 2017.

3.  In due course, her non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. By a Notice of Decision dated 25 July 2018, the Director rejected her claims under all four applicable grounds.

4.  She appealed to the Board against the decision of the Director in the Notice.  By its Decision dated 14 February 2019, the Board dismissed her appeal.  On 25 February 2019, she applied for leave to apply for judicial review of that Decision.                                   

The Applicant’s case

5.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by her with legal assistance and the record of her screening interview in the presence of her lawyer.    In gist, she claimed that she will be harmed or killed by her husband upon her return to the Philippines because of their dispute over custody and access of their sons.

6.  The Applicant was born in Isabela, the Philippines.  She is married with two sons and her family resides in the Philippines.  She received 11 years of education and had worked as a messenger in the Philippines and as a domestic helper in Hong Kong.

7.  The Applicant’s husband (the “husband”) was a bodyguard for the mayor (the “Mayor”).  In around 2008, she found three guns inside her house and confronted her husband about those guns as she was scared about the safety of her two children.  They had a heated argument.

8.  The Applicant heard her husband negotiating price about guns with people and saw him handing over money to the Mayor.  She suspected her husband and the Mayor were involved in an illegal gun trading.  She also suspected he was involved in the death of 17 people in her area who had land disputes with the Mayor in 2008.  She repeatedly begged her husband to stop the illegal business, but in vain.  They had arguments which went on into 2012.

9.  In April 2012, the Applicant made a report to the Barangay of assault by her husband, but the Barangay advised her to go to the police.  She complained to the police, but the police took no action.  She suspected it was because her husband had bribed them.

10.  On 11 May 2012, her husband assaulted her after learning about the police report she had made.  He kicked her hip, slapped her face and punched her chest.  She had bruises on her waist and chest.  She went to a clinic for treatment.  Then, she fled to her aunt’s place with her younger son where she stayed for more than a month.  At the time, her elder son was staying with her mother-in-law.

11.  One day, she was asked to attend a meeting with her husband.  She took her younger son with her.  When she arrived at the house where they were supposed to meet, she saw her in-laws and four Barangay officials were waiting outside.  During the meeting, her husband pointed a gun at her head and threatened to kill her family unless she surrendered the custody of her sons to him.  The Applicant agreed under threat and signed documents surrendering her sons’ custody.  Her younger son was taken away from her.

12.  After about three weeks, the Applicant went to the husband’s place to visit her sons.  She was denied access.  When she demanded to get back her sons, her husband threatened to kill her family if she should make a report to the government.

13.  Then the Applicant went to Manila to seek employment so that she could earn some money to get back her sons.  When her husband learned about that, he sent her an SMS message threatening to kill her if she attempted to get her sons back.  The Applicant replied that she would report his illegal activities to the higher authorities.  Her husband replied that he was going to Manila to look for her.  The Applicant went to hide in her friend’s house for a month and then worked in Manila for two months.  Then she came to Hong Kong to work as a foreign domestic helper on 21 October 2014.

14.  The Applicant returned to the Philippines on completion of her first contract.  She asked her husband for access of her sons, but was refused.  Then she returned to Hong Kong to take up her second employment contract.

15.  Upon learning that her sons were not well treated, the Applicant took four days’ leave to return to the Philippines.  With the help of her aunt, she managed to grab her sons from school.  Her husband went to her aunt’s home to look for the sons.  He tried to attack her aunt with a knife.  In the scuffle, the Applicant’s right arm was hurt by the knife.  She surrendered the sons and returned to Hong Kong.

16.  In December 2016, her husband texted her saying that her neighbours in Hong Kong are his friends and he would come to Hong Kong to bring her back to the Philippines.  The Applicant informed her employer about the threat.  Not wanting to be involved in the dispute, her employer terminated her contract of employment and she returned to the Philippines. 

17.  The Applicant came to Hong Kong again and was allowed to stay as a visitor until 23 March 2017.  She overstayed and then surrendered to the Immigration Department on 16 June 2017.

The finding of the Board

18.  The Applicant gave evidence before the Board.  Seemingly, the Board accepted her evidence as it proceeded to assess her claim on the basis of the case as she asserted.  On the basis of her evidence, the Board found she had never been subjected to any serious ill-treatment from her husband.  All the threats were made over the telephone without face-to-face contact.  The Applicant was attacked by her husband on two occasions but did not suffer any serious injuries.  The husband’s threat in December 2016 to look for her in Hong Kong was just an empty threat.

19.  The Board also found the Applicant was not genuinely scared of her husband.  In response to her husband’s threat to kill her, she retorted by saying that she would report his illegal activities to the higher authorities.  Also, she did not make any non-refoulement claim immediately upon arrival at Hong Kong but only did so after six months.

20.  For the above reasons, the Board concluded that the Applicant was not at risk from any of the proscribed risks of harm under the USM.  Applying the law applicable to non-refoulement protection under the USM, the Board found she was not entitled to protection under any of the four applicable grounds and dismissed her appeal. On the basis of credible Country of Origin Information (“COI”), the Board further found that adequate state protection would be available to protect her from harm upon her return to the Philippines and she could also safely relocate to Cebu or Manila to avoid the harm.

Grounds of application

21.  In her Form 86, the Applicant annexed a seventeen-page statement of grounds.  The statement contains quotations from judicial precedents, statute and a convention, legal arguments and grounds of application.  At pages 15 to 17 of the statement, she advanced 9 grounds.  Ground (1) alleges misdirection in the law.  Grounds (2), (7), (8) and (9) allege procedural impropriety/ unfairness.  Grounds (3) to (6) allege irrationality. The grounds appear to have been copied from applications or templates, some of which have no bearing to the facts of this application. 

Ground (1) – Misdirection in the law

22.  Under this ground, the Applicant complained that the Board misdirected itself on the law by taking into account that a claimant had to have experienced torture in the past in order to establish substantial grounds to believe that there was a risk of torture in the future. 

23.  The Board did take into account the past events in assessing future risk but did not direct itself in the manner as alleged by the Applicant.  Whether a claimant’s fear and risk is well-founded and has been established is a finding of fact.  In making this finding, the ill-treatment suffered in the past is usually a reliable indicator of the risk in the future.  This approach was explained by Brooke LJ in Karanakaran v Secretary of State for the Home Department[5] as follows.  The decision-maker shall take into account all material considerations when making his/her assessment about the future risk.  The decision-maker must not exclude any matters from consideration when assessing the future risk unless those matters can be safely discarded because there is no real doubt they did not occur.  When assessing the future risk, the decision-maker is entitled to place greater weight on one piece of information rather than another.  The decision-maker has to reach a well-rounded decision as to whether, in all the circumstances there is a serious possibility that there will be persecution or torture (depending on the context).  This balancing exercise may necessarily involve giving greater weight to some considerations than to others, depending on the degree of confidence the decision-maker may have about them, or the seriousness of their effect on the asylum seeker’s welfare if they should, in the effect, occur.  Thus, to assess the future risk, it is usually proper to take into consideration the past ill-treatment by balancing it against all other material circumstances.  As for the weight to be given to each circumstance, it is a matter for the decision-maker.  Though the Board did not explain its approach in so many words as did Brooke LJ, it certainly followed that approach.  Its finding that the Applicant was not at risk in the future was not based solely on the mild past ill-treatment she received, but after it had taken all relevant circumstances into account. 

Ground (2) – Procedural impropriety/unfairness: Erroneous reliance on COI;

24.  The Applicant complained that the Board failed to take sufficient steps to obtain further COI research materials to fully understand and put proper weight on relevant facts. She accused the Board of making insufficient inquiries about COI and placing reliance on outdated COI which is not officially recognized or is hearsay.  The Board did refer to the COI.  The COI are all from official, authoritative and credible sources, including Country Report on Human Rights Practices for 2016: published by the United States Department of State; Annual Report 2015 published by the Office of the Ombudsman;and news reports from reputable news agencies such as Philippine Star etc.  These COI are all from authoritative and credible sources.  The information is contemporaneous and not outdated.  Having regard to the nature of the information, it must contain an element of hearsay.  The people responsible for compiling and publishing the information are usually people acting under a duty owed to public authoritative bodies to provide reliable information.  The information is credible. Furthermore, the Board would carefully consider the information and give it such weight as it thought fit having regard to the nature of information, the circumstances the information was obtained etc.

25.  The Applicant accused the Board of failing to take sufficient steps to obtain further COI research materials and in particular failed to take into account (a) USHR 2010, (b) USRF 2010 and (c) Report on the International Commission of Jurists Mission to Philippines, Autumn 2011.  The Applicant submitted that “had these reports been considered by the Board the content therein would have provided sufficient COI corroborated the Applicant’s version of events and legitimate fears.  It would have also been sufficient to support finding of a consistent pattern of human rights abuses in Bangladesh and there is a lack of state protection.”  These reports are not exhibited or not available in the website.  There is no evidence that the Director or the Board had been referred to these COI.  Other than a bald assertion that the COI relied on by the Board are unreliable, outdated and hearsay, the Applicant provided no particulars, not even any hint, as to what are untrue, not to mention her failure to provide any publication contradicting those COI.  The Court considered there is no merit in this ground.

Ground (3) – Irrationality: Cherry picking COI, failing to take into account relevant COI, giving weight to irrelevant COI

26.  The Applicant complained about the weighting put on the COI and that the Board was cherry-picking.  The complaint is lacking in particulars.  The Applicant did not identify the irrelevant COI on which the Board placed undue weight or the relevant COI on which the Board did not place adequate weight.  Based on these bare assertions, it is impossible to criticise the finding of the Board, whether for error of law, procedural unfairness or irrationality.  Furthermore, determining the weight to be given to a piece of COI is basically a finding of fact which is solely within the province of the Board as the tribunal of fact. In any event, in view of its finding that the Applicant does not face a real chance of harm of any kind for any of the reasons claimed, the Board’s finding on availability of state protection and internal relocation was unnecessary for its decision. 

Ground (4) – Irrationality: Failing to find whether there exists in the Philippines a consistent pattern of gross, flagrant or mass violations of human rights

27.  Whether such a consistent pattern exists is a fact to be determined on the basis of the COI. This complaint is therefore a challenge of the finding of fact by the Board. However, as the Board found that the Applicant was not at risk from any of the proscribed risks of harm under the USM, it became unnecessary for the Board to make such a finding.  This complaint has no substance.

Ground (5) – Irrationality: The Board “failed to analysis and assess weather (sic) state protection exists in Philippines under the extended meaning …”

28.  This ground is incomprehensible and is therefore quoted in its entirety.  The Applicant complained that “the Adjudicator failed to analysis and assess weather (sic) state protection exists in Philippines under the extended meaning namely weather the sate (sic) had exercised due diligence or sufficient due diligence.  Furthermore, the Adjudicator misdirected herself on the law erroneously stating what the extended meaning of state protection was.” 

29.  This ground was probably copied from another application in which one of the issues was whether the ill-treatment was inflicted by someone with state acquiescence under the extended meaning of that term.  The threat and assault in the present case was inflicted by the husband as a private individual arising out of a family dispute involving custody and access of the Applicant’s and her husband’s sons.  Though the husband was a body guard of the Mayor, there is no evidence to suggest he did so with state acquiescence, whether under the normal or extended meaning of the term.  

Ground (6) – Irrationality: failure to take into account relevant considerations and giving weight to irrelevant considerations

30.   The Applicant complained that “the Adjudicator took into account and put weight on irrelevant considerations or considerations that were incorrect or not based on fact or facts not reasonably inferred and failed to take into account and put weight on facts and inferences that were favourable to the Applicant.”  She argued that as a consequence, the Decision arrived by the Board in dismissing the Applicant’s appeal was unreasonable.  The Applicant gave no particulars of the relevant considerations or facts which the Board failed to take into account and the irrelevant considerations or facts which it took into account.  In the absence of such particulars, it is impossible to assess if the Board’s finding could be impugned whether on account of error of law, procedural unfairness or irrationality. 

Ground (7) – Procedural impropriety/unfairness: Failure to call for psychological and psychiatric evaluation and reports

31.   The Applicant argued that the Director’s and the Board’s failure to call for psychological and psychiatric evaluation and reports at any stage of the screening process amounted to procedural impropriety.  The Applicant had never complained about psychological or psychiatric ill-treatment or that she is suffering from such condition as a result of the ill-treatment.  There was also no record of any request for such examination.  This ground is just a copy and paste ground from another case which has no bearing to the facts of this case.

Ground (8) – Procedural impropriety/unfairness: The Board applied the incorrect standard of proof

32.  The Applicant gave no particulars of this alleged impropriety or unfairness.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had not failed to apply the correct standard of proof.

Ground (9) – Procedural impropriety/unfairness: Failure to provide legal assistance

33.  The Applicant complained that “the failure at first instance by the assigned duty lawyer resulted in lack of and/or insufficient legal representation for the Applicant” and amounted to procedural unfairness.  The allegation has no bearing to the circumstances of this case. It is factually incorrect.  The Applicant was provided with language and legal assistance up to the screening interview but not thereafter.  She was not provided with legal assistance in the appeal at all. 

34.  The Applicant’s more general complaint is that she was not provided with language and legal assistance in pursuing her appeal and was not provided with legal representation before the Board.  There is no dispute that such assistance had been provided to her in preparing her NCF and in her screening interview before an immigration officer.

35.  In Re Zafar Muazam[6], Re Zunariyah[7], Re Zahid Abbas[8], Re Tariq Farhan[9], and Re Lopchan Subash[10], the Court of Appeal held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar.[11] nor the judgment of FB v. Director of Immigration[12] prescribes that a claimant of BOR 2 or BOR 3 or persecution risks has an absolute right to free legal representation at all stages of the proceedings.  The Applicant was legal represented up to the conclusion of the screening interview, but not at the appeal before the Board.  The real question is whether the claimant is prejudiced for want of legal and language assistance.

36.  The Applicant had the benefit of legal representation in presenting her case to the Director.  All the benefits that legal representation could have afforded her were contained in their written submissions, non-refoulement claim form and answers in the screening interview given under legal advice.  All these had been presented to the Director, which were then presented to the Board.  Despite they were not legally represented at the oral hearing before the Board, all the benefits which legal representation could have afforded her were before the Board.  Taking a global view of the circumstances, nothing amiss arose from the non-availability of legal representation in the process before the Board.  The Applicant suffered no prejudice due to lack of legal representation before the Board.

37.  The Applicant said that the appeal bundle is in English and was never explained to her in her first language.  She did not know its contents and it was apparent to the Board that she did not have the means to arrange for translation.

38.  In Karamjit Singh[13], the Court of Appeal agreed with the Court of First Instance that it could not have been the intention of any authority laying down the principle of a high standard of fairness that the principle would include provision of interpretation service at any time an applicant desired or required.  It must be borne in mind that it was the Applicant’s choice to come to Hong Kong where the official languages are Chinese and English.  In the circumstances, she has to live with or cope with her language disability.  She cannot expect to have the luxury of any documents to be fully translated into his first language for her benefit as and when she requires.  She has to find assistance herself from among her friends and her ethnic community.  Indeed, the Applicant was able to file an adequately well written affirmation and submission in English.

39.  Furthermore, the appeal bundle is basically made up of her NCF, the record of her screening interview, and the Director’s Notice of Decision with the COI.  She knows what is contained in her NCF which was filled in by her with the assistance of an interpreter and the Duty Lawyer Service.  She knows what is contained in the record of screening interview which she attended with the assistance of interpreter and legal representation.  The record had been read back to her in her own language and she signed to acknowledge that she understood and agreed with its contents and that no amendment was necessary. Recognizing the limitation in her foreign language ability and the importance of her claim, she ought to have taken notes, at least very brief ones, to remind him of what she had said or written rather than relying on the host country to provide her the convenience of interpretation at her fingertips. 

40.  The Notice and COI are in English but unfortunately have not been translated.  As mentioned above, she has to find assistance herself from among her friends and her ethnic community.  The Notice was issued in July 2018.  The oral hearing was conducted in December 2018.  In between, she had about five months to find out what the Notice and COI are about, if she was at all serious in pursuing her non-refoulement claim.  She should not do nothing and expect the host country would translate the documents to her as and when she required as if the host country were head-hunting for people of her expertise.

41.  The Applicant had the benefit of legal assistance in preparing her NCF and legal representation at the screening interview.  All the benefit that legal assistance could have afforded her were presented to the immigration officer at the screening interview, which were then presented before the Board.  The Board is under a duty to observe a very high standard of fairness.  In that way, her interest was safeguarded.  The Applicant was not prejudiced by reason of lack of legal assistance in preparing her notice of appeal or lack of legal representation at the appeal before the Board.

Conclusion

42.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the issues; the burden of proof and standard of proof; and correctly identified the issues.  The Board observed a very high standard of fairness.  It was on that basis that the Board found there was no factual basis to support the Applicants’ claims for non-refoulement protection under any of the four applicable grounds.  Basically, the Applicant failed to discharge her burden of proving her fears and risks.   These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness, unreasonableness and irrationality.  The Court could detect no error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The Decision is utterly without fault.

43.  For the above reasons, the Applicant’s grounds are not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review.  Accordingly, leave to apply for judicial review was refused.

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