PALAO ROSITA BORJA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1616/2019

[2024] HKCFI 795

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1616 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;

1.   Leave to amend the Form 86 be allowed; and

2.   Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 13 June 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board/ Non-Refoulement Claims Petition Office (the “Board”) dated 24 May 2019 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 7 December 2018 (the “Notice”).  The Applicant named the adjudicator who made the Decision in his personal capacity as the putative respondent.  As the Decision is the decision of the Board, leave is granted to amend the Form 86 by substituting the Board for the adjudicator as the putative respondent.

2.  The Applicant had requested an oral hearing.  A hearing was scheduled and notice of hearing was sent to her by post to her address as stated in his Form 86.  It has not been returned through the post. She had never informed the court of any change of address.  There is nothing to suggest that she had not received the letter or had moved.   However, she did not appear at the hearing.  Having considered the nature of the application and issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court considered that the leave application may be justly determined on paper without an oral hearing.

3.  The Applicant is a Philippine national.   She had previously worked in Hong Kong as a foreign domestic helper.  She last entered Hong Kong for employment on 20 May 2013.  Her employment contract was prematurely terminated and she overstayed. On 28 October 2015, she surrendered to the authorities.  On 6 April 2018, she raised a non-refoulement claim.  In due course, her non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. Her claim was dismissed by the Director’s Notice.  Her appeal against the Notice was dismissed by the Decision of the Board.  She now applies for leave to apply for judicial review of that Decision.

The Applicant’s case

4.  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 would be harmed by her moneylender Ramon Guiwan (the “moneylender”) upon her return to the Philippines because she was unable to repay her outstanding debts.

5.  The Applicant, now aged 55, was born in Apalit, Pampanga of the Philippines.  She received ten years of education and has worked as a foreign domestic helper in Hong Kong for about 16 years.  In 2013, she borrowed 65,000 pesos from the moneylender to pay an employment agency for arranging her employment in Hong Kong.  She had to repay by 12 monthly instalments of 10,000 pesos.  The moneylender was a councillor of Pampanga District and operated a business renting houses and lending money.  His home was close to the Applicant’s home.  Her employment was prematurely terminated in August 2014 and she returned to the Philippines.  She had only repaid 4,000 pesos for 11 months.

6.  In late 2014, the Applicant took out a further loan of 62,000 pesos from the moneylender to pay placement fee for her employment in Hong Kong and the school fees of her children.  Her outstanding loan totalled 127,000 pesos.  The moneylender told her that the money he lent her was from his hard work and she to repay.  He also warned her, while pointing his index finger at her forehead, that if she failed to repay, he would use his influence, which the Applicant understood to mean using his influence with the Tau Gama group (a gangster group engaged in the moneylending business) to harm her.

7.  The Applicant came to work in Hong Kong in September 2014.  Her contract was terminated prematurely in May 2015.  She was unable to make repayment.  In the same month, the moneylender asked the Applicant’s daughter to go to his home and told her that the Applicant owed him 187,000 pesos.  He threatened to send his brothers to destroy the Applicant’s home.

8.  A few days later, the moneylender asked the Applicant’s daughter to go to his house again and sent men to destroy the home appliances and windows in the Applicant’s home.  The Applicant’s other children who were present at her home at that time were scared.

9.  Thereafter, the moneylender sent his relatives to harass the Applicant’s children.  He also asked her children to pass on death threats to the Applicant.  He never physically harm the Applicant or her children, but some of her children fled from their home to avoid the moneylender.  In December 2016, the Applicant’s neighbours in the Philippines told her that the moneylender was still looking for her.

10.  The Applicant said she had sought help from the Barangay captain (the head of her neighbourhood) who interceded on her behalf with the moneylender.  The Barangay captain told the moneylender not to take away her personal properties.  The Applicant however did not believe the Philippine government or police would give her any protection because she had been away from the country for a long time.  She did not believe she could relocate to other cities in the Philippines because the moneylender had connections everywhere in the country.

The finding of the Board

11.  The Board apparently assessed the Applicant’s claim on the basis that the events she relied on were true.  On the basis of the Applicant’s case as she asserted, authoritative and credible country of origin information (“COI”) and the legal principles applicable to non-refoulement protection, the Board identified certain fatal points in the Applicant’s claim which are sufficient to refuse her claim. 

12.  First, the Board noted that neither the Applicant nor her children had been hurt by the moneylender; that the moneylender was only a councillor of Pampanga District and not a government official; that the Applicant did not know anything about the function of Tau Gama and there was not a shred of evidence that Tau Gama had ever been involved in her dealing with the moneylender.  Even though the moneylender had vowed to kill her upon her return to the Philippines, the Board did not accept that he would execute the threat because by killing her the moneylender would not be able to recover the debt. 

13.  Second, on the basis of the COI, the Board found, despite there are problems about corruption and inefficiency in the police force, the Philippine government had taken steps to combat corruption, improve police efficiency and effectiveness and protect its citizens.  It was satisfied that state protection of an adequate standard would be available to the Applicant to prevent or negate the risk and harm from the moneylender.

14.  Third, the Board considered the Applicant’s risk of harm is localised and she could safely avoid the moneylender by relocating to Manila or Cebu on her return.  It would be most unlikely that the moneylender would have the resources to locate her in other parts of the country.  Given her education and work experience, it would not be unduly harsh to expect her to relocate.

15.  For the above reasons, the Board found that the Applicant would not be at risk of any serious harm or death from the moneylender upon her return.  Her claim under BOR 3 Risk ground therefore fails.  For the same reason and the additional reason that the ill-treatment or suffering likely to be inflicted on the Applicant would not fall within the definition of ‘torture’ under section 37U(1) of the Immigration Ordinance, the Board found she is not entitled to protection under Torture Risk ground.  The facts of the Applicant’s case clearly do not engage BOR 2 (ii) to (vi) as her case is not based on risk of genocide or a death sentence having been passed on her; and there is nothing to suggest returning her to the Philippines would result in her absolute and non-derogable rights under BOR 2 (i) being put at risk of violation.  Her claim under Persecution Risk ground also fails because the alleged risk arose out of the Applicant’s personal monetary dispute with the moneylender which had nothing to do with the reasons protected under the 1951 Convention relating to the status of Refugees and its 1967 Protocol.

The legal principles applicable to judicial review

16.  The function of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[5].  

Grounds for judicial review

17.  The sole ground of application advanced by the Applicant in her Form 86 is the Board’s breach of procedural fairness.  She alleged:

The Board is in breach of procedural fairness in the following respects:

(1)  the Board unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirement;

(2)  the Board acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(3)  the Board’s Decision to refuse the applicant’s appeal were unreasonable or irrational in the public law sense, or are a result of procedural errors or unfairness; and

(4)  the Board failed to meet the greater care and duty owed to a self-represented claimant.

These particulars of breach are quoted almost verbatim from her Form 86.  They contain serious allegations but are lacking in particulars.

18.  Under the section titled ‘Factual Background and Chronology’ in her supporting affirmation, she made the following allegations which may be regarded as particulars of the alleged procedural unfairness:

(1)  late delivery of the hearing bundle and insufficient time to prepare for the hearing(paragraphs 5 and 9);

(2)  lack of language assistance in understanding the hearing bundle (paragraph 6)

(3)  The Board’s refusal to notify her by telephone about the outcome of her appeal (paragraph 7);

(4)  she was confused (paragraph 8);

(5)  unfair that she was not believed (paragraph 9);

(6)  the Board’s reliance on outdated, non-official, unofficial COI (paragraph 10);

(7)  no screening interview for BOR 2 claim (paragraph 11); and

(8)  no proper inquiry without immigration officer having visited the risk country (paragraph 14).

Grounds (1) and (2) – Insufficient time to prepare for the hearing and lack of language assistance

19.  These two grounds are related and should be considered together.  The Applicant claims that she only received the hearing bundle a few days before the hearing including an intervening weekend of two days.  Thus, she did not have enough time to prepare for the appeal.  The hearing bundles are usually delivered one week before the hearing.  The majority of the documents are in English and she did not have financial means to engage reasonably cheap interpreter to translate the documents for her. 

20.  On the language issue, the Court of Appeal held in Karamjit Singh[6] 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 a claimant 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 her native language for her benefit as and when she requires.  She has to find assistance herself from among her friends and her ethnic community.  There is a sizeable Filipino community in Hong Kong from which she could seek assistance.  The Filipino community is probably the largest foreign community in Hong Kong.   Indeed, the Applicant was able to file an adequately well written affirmation in English.

21.  Furthermore, the hearing bundle is basically made up of her NCF, the record of her screening interview, and the Director’s Notice of Decision with the COI.  The Applicant knows what is contained in her NCF which was filled in by her with the assistance of an interpreter and the Duty Lawyer Service (“DLS”).  She knows what is contained in the record of screening interview which she attended with the assistance of an 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 English language ability and the importance of her claim, she ought to have taken notes, at least very brief ones, to remind her of what she had said or written rather than relying on the host country to provide her the convenience of interpretation at her fingertips.  The Notice and COI are in English and unfortunately have not been translated.  The Duty Lawyer Service had most probably discussed the contents of the COI with her when representing her before the Director.  As mentioned above, she should not do nothing and expect the host country would translate the documents to her as and when she requires.  She has to find assistance herself from among her friends and her ethnic community. 

22.  The Applicant complained that excluding the two-day weekend she only had four days to prepare for the appeal.  On the face, a period of four days appears to be short.  However, she should not indulge herself for the weekend and forget about her appeal as if she were a tourist visiting Hong Kong.  Furthermore, having regard to fact that she should be familiar with what is contained in the hearing bundle, the period is not inadequate.  Besides, time should start to run, not from the day of receipt of the hearing bundle, but from the date of receipt of the Notice which she sought to appeal, if she was serious about the appeal.  The Notice was issued on 7 December 2018.  The oral hearing was held on 29 April 2019.  In between, she had almost five months to find out what the appeal bundle is about.  In any event, if she need more time for preparation, she could have raised that with the Board at the hearing.  There is no substance in these two grounds.

Ground (3)  – Board’s refusal to notify her by telephone about the outcome of her appeal

23.  Even assuming what she alleged is true, it is difficult to see how the Board’s refusal to inform her by telephone about the outcome of her appeal could amount to an irregularity of a Decision which had already been made.  The Decision was sent to her by post and took effect on the day of posting.  Even if she were informed by telephone about the Decision before it was posted, it could not change the outcome of the Decision. 

Ground (4)  – The Applicant was confused

24.  The Applicant claims she was confused due to lack of understanding on what will happen in the hearing, that she was not provided with the hearing bundle earlier, and that the hearing bundle is in English without interpretation.  But she is no stranger to Hong Kong.  She had worked on and off in Hong Kong for twenty years by the time she appeared before the Board.  At the hearing, she had all the assistance she could have from the Board including the services of an interpreter.   The Board observed a high standard of fairness.  Even if she were confused, there is nothing to suggest that she had been prejudiced and taken advantage of.

Ground (5) – Unfair that she was not believed

25.  The Applicant claims that she had the truth and it was unfair that she was not believed.  This is in every respect a direct attack on the Board’s finding of credibility of a witness which is not permissible.  Finding of a witness’ credibility is a finding of fact solely within the province of the Board, which the court in a judicial review may not intervene, save for errors of law, procedural unfairness and irrationality. This Court cannot detect any such vitiating elements in the Decision or in its making.

Ground (6) – COI is not officially recognized or is hearsay

26.  The COI relied on by the Board are all from official, authoritative and credible sources, including the Country Report on Human Rights Practices for 2016 published by the United States Department of State; The Annual Report 2015 published by the Office of the Ombudsman of the state of the Philippines; and The World Factbook published by the US Central Intelligence Agency. 

27.  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 had carefully considered the information.  As for the weight to be given to the COI, it is a matter for the Board having regard to the nature of information, the circumstances the information was obtained etc.  It is also a finding of fact solely within the province of the Board.

28.  Other than making a bald assertion of unreliability, out-datedness and hearsay, the Applicant provided no particulars of any credible up-to-date information, not even any hint as to any possible source of such information, not to mention her failure to provide any up-to-date publications contradicting these COI.  The Court considered the complaint absolutely groundless.

Ground (7) – no screening interview for BOR 2 claim

29.  The Applicant’s non-refoulement claim was lodged in 2018, long after the BOR 2 Risk ground was introduced into the USM.  As was mentioned in paragraphs 3 and 4 of the Notice, her claim was assessed on all four applicable grounds, including the BOR 2 Risk ground, in one go.  Hence, the screening interview covered all four applicable grounds. There was no need for a separate screening interview for the purpose of assessing her claim under BOR 2 Risk ground.  There is no substance in this ground. 

Ground (8) – No proper inquiry as the immigration officer had not visited the risk state

30.  The Applicant argues that the Board reached the wrong Decision for it could not have rejected her claim without hearing the views from the interviewing officer who had visited the risk state and investigated her claim.  This Court is of the view that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar.[7] nor the judgment of FB v. Director of Immigration[8] prescribes or would require that a host country make investigation in the risk state before its decision makers may decide on a non-refoulement claim.  It is sufficient for a decision maker to inform himself of the country condition by consulting authoritative and credible COI.  The claimant’s interest is further protected by the relatively low standard of proof required to discharge his burden of proof and the host country’s joint endeavour to substantiate his claim.    

Overall scrutiny of the Decision

31.  Having rigorously examined the Board’s Decision, the Applicant’s grounds for application, the papers and the evidence with anxious scrutiny, the Court is satisfied that there is no substance in any of the grounds of application advanced by the Applicant.  The Court is also satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof and quoted relevant precedents in support of its Decision. The Board clearly understood that its duty was to consider the Applicant’s claims afresh and not just whether to uphold or dismiss the Director’s decisions in the Notice.  It correctly identified the factual and legal issues raised in the claim.  The Board assessed her claim on the case as she asserted, but found the moneylender had no intention to harm or kill her.  It further found that she could reduce or avoid her risk of harm by accessing state protection and internal relocation. Accordingly, the Board came to the conclusion that the Applicant was not entitled to non-refoulement protection under any of the four applicable grounds.  These are finding of facts and of law.  Insofar as it is a finding of fact, the Board assessed the Applicant’s claim on the factual case as she asserted.  The Applicant could have no reason to complain about the Board’s finding of these primary facts.  It was on that basis that the Board further found the Applicant had failed to establish the factual basis to support her claim for non-refoulement protection under any of the four applicable grounds.  This is a mixed finding of fact and of law.  Insofar as it is a finding of fact, it is 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 and irrationality.  Insofar as it is finding of the law, it is absolutely correct.  The Court could detect no error of law or procedural unfairness in the Decision.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge her burden of proving her fears and risks.   The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success. 

Conclusion

32.  For the above reasons, leave to amend the Form 86 is granted, but leave to apply for judicial review is 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

[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[3] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[5] [2018] HKCA 524 at [14(1)]

[6] CACV 78/2018

[7] (2004) 7 HKCFAR 187

[8] HCAL 51 of 2007