MARTIN REBECCA MOKYAT v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1233/2018

[2021] HKCFI 1130

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1233 of 2018

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 oral submissions by the Applicant in open court;

Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.  The Applicant is a Philippine national.  She last came to Hong Kong as a tourist on 2 December 2014 and was permitted to remain as a visitor until 16 December 2014.  She over-stayed since.  She surrendered to the Immigration Department on 24 July 2015.  In May 2016, she applied for a non-refoulement protection claiming that she will be harmed or killed by her husband if returned to Philippine as a result of domestic violence.

2.  In due course, she submitted her non-refoulement claim form (“NCF”) and attended a screening interview.  Her non-refoulement claim was assessed on all four applicable grounds available under the Unified Screening Mechanism (“USM”), namely:

(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 (“Torture Risk”);

(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”) (“BOR 3 Risk”);

(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 (“Persecution Risk”); and

(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 (“BOR 2 Risk”).

3.  By a Notice of Decision dated 9 August 2017 (the “Notice”), the Director of Immigration (the “Director”) rejected her claim.  On 21 August 2017, she lodged an appeal to the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) against the decision of the Director.  On 21 June 2018, the Board dismissed her appeal (the “Decision”).  On 29 June 2018, she applied for leave to apply for judicial review against the Notice of the Director, the Board’s Decision, the record of the screening interview and her NCF.

4.  The decision of the Director in the Notice is not subject to judicial review because there are in place procedures for appeal against the Director’s decision to the Board.   In fact, the Applicant has invoked those procedures by appealing to the Board.  A judicial review of the Decision of the Board, if she is entitled to, would adequately protect her interest.  Furthermore, as was held in Re Moshsin Ali[1], the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review.  The record of the screening interview and her own NCF are not reviewable as they are not decisions of an administrative body.  The former is a record of what she said during the interview; and the latter was a document prepared by herself.  The Court therefore treated her application as an application for leave to apply for judicial review of the Decision of the Board dated 21 June 2018 and her complaints against the Director as being directed at the Board as well.

The Applicant’s case

5.  The following account of the Applicant’s case is mainly based on the information in her NCF which was prepared by her with assistance of the Duty Lawyer Service and incontrovertible evidence. 

6.  The Applicant is now 43 years of age.  She is married and has three children, aged 21 to 25.  Her husband is a businessman.  Her relations with her husband deteriorated since 1997 when he developed a drinking problem and became suspicious and jealous of her.  He assaulted her whenever he was angry.  She reported to the police which resulted in her husband being detained.  In July 2013, her husband got angry, locked her inside the house for three days and threatened to kill her if she reported to the police.  Similar incidents occurred between July and September 2013.  Eventually, she fled to Hong Kong in December 2013.

The finding of the Board

7.  The Board accepted the Applicant’s evidence about her background and that she is a victim of domestic violence, but did not accept that the harm the Applicant feared from her estranged husband came within the definition of torture in section 37U(1) of the Immigration Ordinance.   The Board also noted that according to her evidence, her husband was not a public official and was not and would not be acting in an official capacity in the context of the circumstances in which the Applicant claimed to be at risk of being subjected to harm.  On the available Country of Origin Information (“COI”), the Board was satisfied that reasonable state protection is available in that the police and legal system in the Philippines has committed itself in responding appropriately to domestic violence and that both law enforcement agencies and non-government organisations are available to assist vulnerable women.  The Board therefore dismissed her claim under the Torture Risk ground.

8.  In respect of the BOR 3 Risk ground, the Board was not satisfied that there were substantial grounds to believe that the Applicant would face a real risk of being subjected to degrading treatment if returned to the Philippines.  In addition, the Board was satisfied that state protection and internal relocation are available to deal with or avoid the risk.

9.  In respect of the BOR 2 Risk ground, the Board found there was no evidence that the Applicant was at risk of being deprived of her life by the government on her return to the Philippines as she has not committed or been charged with any criminal offence in the Philippines.

10.  In respect of the Persecution Risk ground, the Board did not accept that there are substantial grounds to believe that there is a real risk that the Applicant would be subjected to torture or cruel, inhuman, degrading treatment or punishment by or on behalf of her estranged husband if she is returned to the Philippines.

The applicable legal principles     

11.  The role of the court in judicial review is not to re-assess the non-refoulement claim 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.  The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[2].

Grounds for judicial review

12.  On 29 June 2018, the Applicant lodged a nine-page affirmation in support of her application.  The essence of her complaint is about procedural unfairness as a result of lack of legal and language assistance; that the Decision was unreasonable, illogical, and gave no weight to the threat; that the Board did not explain how it allocated weight to be given to the COI. 

13.  As for her complaint about lack of language assistance, the Applicant’s complaint is that the majority of the documents in the appeal bundle were in English and without translation.  They were given to her shortly before the oral hearing before the Board.  No one explained the documents to her.

14.  In Re Zafar Muazam[3], Re Zunariyah[4], Re Zahid Abbas[5], Re Tariq Farhan[6], and Re Lopchan Subash[7], the Court of Appeal held that neither the high standard of fairness laid down in Sakthevel Prabakar v. Secretary for Security[8] nor the judgment of FB v. Director of Immigration[9] prescribes that a CAT claimant or 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. 

15.  The Applicant alleged that she was refused legal representation during the screening interview.  That is a false and most unfair accusation.  The record of the screening interview shows that she was represented by Miss Teresa Liu of the Duty Lawyer Service.  She had the benefit of legal representation and interpretation services of a qualified interpreter at the screening interview and in presenting her case to the Director. 

16.  She complained that she had not been given a copy of the NCF and therefore did not know if the interpreter had properly translated the basis of her claim.  She had the services of a qualified interpreter at the screening interview and oral hearing before the Board.  The interpreters were fully qualified and had taken an oath or affirmation to fully and accurately interpret for the Applicant.  The Applicant had been provided with the appeal bundle before the hearing which is basically made up of her NCF, the record of the screening interview and the decision of the Director in the Notice, including the COI.  She certainly knew what were in her NCF and the record of the screening interview.  At the hearing before the Board, she confirmed through the interpreter that the evidence she gave to the Immigration Department were true and correct.  It lies ill in her mouth to attempt to overturn the result of the hearing on her bald and gratuitous suspicion that the interpreters had not properly interpreted for her.

17.  As for her complaint about the COI, the COI are published by credible and authoritative organisations, including Country Report on Human Rights Practices for 2016: Philippines published by the United States Department of State.  As noted by the Board, in the face of these COI the Applicant did not claim, contrary to the above COI that there existed in the Philippines a pattern of gross, flagrant or mass violations of human rights.  There was no COI to the contrary.  The question of weight did not arise.  Her complaint is groundless.

18.  As for the overall or general complaint about irrationality and unreasonableness in the Board’s finding, these grounds of complaint are against the finding of facts by the Board.  The Court pointed out that the function of the court in judicial review is not to re-assess the non-refoulement claim afresh.  The court will only scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality.  Having rigorous 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; and observed a very high standard of fairness.  It was on that basis that the Board found there was no factual basis to support the Applicant’s claim for non-refoulement protection under any of the four applicable grounds. 

Conclusion

19.  Accordingly, the Court concluded that there was nothing that shows there was any error of law or procedural unfairness or irrationality in the Decision of the Board.  The Court found that the Board adhered to a high standard of fairness.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable.  The Applicant’s claim is not reasonable arguable.  There is no realistic prospect of success.  Accordingly, 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]  [2018] HKCA 549

[2]  [2018] HKCA 524 at para 14(1)

[3]  cacv 2/2018, (unreported) 23 March 2018

[4]  [2018] HKCA 14

[5]  [2018] HKCA 15

[6]  [2018] HKCA 17

[7]  [2018] HKCA 37

[8]  (2004) 7 HKCFAR 187

[9]  HCAL 51 of 2007, (unreported) 5 December 2008