SUROP VIOLETA LOPEZ v. DIRECTOR OF IMMIGRATION

HCAL 102/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 102 OF 2013

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JUDGMENT
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1. The applicant lodged a claim under art 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”), which was rejected by the Director of Immigration on 30 April 2013 and, on appeal, by the Torture Claims Appeal Board on 26 June 2013. This is her application for leave to apply for judicial review.

THE APPLICANT

2. The applicant was a national of the Philippines born in 1957.   She had received 10 years of education.  She got married in 1981 with 2 sons, one living in Bahrain, the Middle East, and one living in the Philippines[1].  Her husband was by occupation a tricycle driver.

3. The applicant first came to Hong Kong in September 1991.  Prior to that, she had worked in Saudi Arabia since 1987.  From 1991 to 1995, she worked and completed various contracts as a domestic helper in Hong Kong.  She then returned to her home village in the Philippines.  In 2000, the applicant came to Hong Kong again, and had since worked and completed another couple of contracts as a domestic helper.

4. In October 2007, the applicant returned to her home village in the Philippines on holiday.  She returned to Hong Kong in the same month to complete her contract with her employer.  But that contract was terminated prematurely in August 2008.  She was due to depart from Hong Kong by 11 September 2008.

5. The applicant overstayed, and successfully remaining for 8.5 months before her arrest by the police on 30 May 2009.  She was charged with and convicted of overstaying, and was sentenced to 5 days of imprisonment.  Upon discharge, she was transferred to the Castle Peak Bay Immigration Centre on 9 June 2009.  On 23 June 2009, she was released on recognizance.

6. In 2009, the applicant sought protection from the United Nations High Commissioner for Refugees (“UNHCR”) in Hong Kong, but her application was rejected in the same year.  On 15 March 2010, the applicant lodged the CAT claim under Part VIIC of the Immigration Ordinance Cap 115 (“the Ordinance”), suggesting that she would be at risk of being subject to torture if she returned to her home country.  She lodged her claim form on 4 March 2013.

7. The basis for the torture claim is this.  In 2006 when she was working in Hong Kong as mentioned above, she learned from friends that her husband was having an affair with another woman back in the Philippines.  When she was back to her home village on holiday in October 2007 as mentioned above, her sister also told her the same.  The applicant confronted the husband, who admitted the affair.  The applicant asked for separation but her husband refused.  During the argument, the husband became furious and assaulted her, and at some point pointed a gun at her and threatened to take her life.  The applicant escaped to her mother’s house nearby.  The injuries were not serious and she did not seek medical treatment[2]. Nor did she seek police assistance[3]. 2 days later, she went to stay with her sister at Tarlac, which is a province about 2 hours’ ride away from her home village.  About 4 days later, she returned to Hong Kong to complete her contract with her employer as scheduled. According to her, the ground of her claim to the UNHCR earlier was similar.

8. Screening interview for her torture claim was held on 22 March 2013, which she attended with the assistance of duty lawyer and interpreter.  On 30 April 2013, the Director of Immigration (“the Director”) refused her claim.  The written reasons were essentially that her claim did not amount to “torture” under section 37U(1) of the Ordinance; and there was no real risk of torture upon her return to her home country.

9. The applicant appealed, which was considered by the Torture Claims Appeal Board.  The Adjudicator, Mr William Lam, gave his decision on paper on 26 June 2013 dismissing the appeal.  Essentially the Adjudicator found that the complaint was of domestic nature, and there is no evidence of instigation from or involvement or authorisation by the national Government of the Philippines or any person acting in an official capacity.  The Adjudicator also found no severe pain and suffering as stated in the common law requisite for the torture claim.

10. By Notice of Application dated 5 July 2013, the applicant seeks leave to apply for judicial review of the above decisions.  For that, I directed a hearing to be held, which the applicant attended[4].

THE GROUNDS

11. The substantive content of the applicant’s affidavit in support starts at page 3.  Paragraphs 1 to 4 and 9 to 11 cover some of the background already set out above.  Paragraphs 5 and 6 cover her complaint about her husband, which is also set out above.  Paragraphs 7, 8 and 12 contain her following disagreement with the decisions of the Director and the Adjudicator:

(1) Regarding whether there was the requisite “severe pain and suffering”, the applicant reiterates that it was domestic violence whereby she was tortured physically and mentally by her husband.  Assault marks were said to be visible on her neck and arm.

(2) Regarding whether there are substantial grounds for believing that she would be at risk of torture if she returns to her home country, the applicant reiterates that the threat of her husband to kill her could not be taken lightly so that she has no choice but to leave him and to escape to Hong Kong.

(3) In the circumstances, the applicant says that it is contrary to justice and common humanity to refuse her claim and to evict her from Hong Kong.

12. During the hearing, the applicant reiterated her wish to stay in Hong Kong.  After repeated explanation to her of the nature of the proceedings and the opportunity for her to make oral representation, the applicant confirmed she had nothing to add to the materials before me, including what were spelt out in her supporting affidavit.

DISCUSSION

13. What is apparently fatal to the claim of the applicant is the absence of state involvement or acquiescence in what was essentially a domestic dispute that gave rise to the applicant’s claim.  This takes the complaint out of the definition of “torture” under section 37U(1) of the Ordinance[5].  Her belief that the police in her home town would not be prepared to assist her (without bribery), in the circumstances of this case mentioned above, does not form a reasonable basis for inferring state acquiescence[6]. It was also with reference to her account of her injury, pain and suffering as well as the options available to her, including relocation in her home country, that the Director and the Adjudicator refused to accept a real and substantial risk of the applicant being subject to torture, if she returns to her home country. All those were explained in the respective decisions of the Director and the Adjudicator.

14. It is not the function of judicial review for the court to sit on appeal from the Adjudicator’s decision on the merits.  But the court will subject the decision to rigorous examination and anxious scrutiny to ensure that high standards of fairness had been met: see Secretary for Security v Prabakar (2004) 7 HKCFAR 187 at §45; TK v Michael Jenkins & Anor, CACV 286/2011 (21 November 2012) at §40.  Whilst it does not appear that the applicant is challenging the procedural error or fairness of the determination of her case, I should perhaps consider one aspect.

15. As mentioned, the Adjudicator gave his decision on paper.  In his decision, he did explain that he had reviewed all the materials in the file while bearing in mind the issues involved and their relevance to the law.  He expressly found no advantage or need for a hearing to be conducted.

16. There is no absolute right to an oral hearing.  In ST v Betty Kwan & Anor, CACV 115/2013 (26 June 2014)[7], the Court of Appeal (at §§20-36) set out the general principles on whether to hold an oral hearing.  In the context of the screening of torture claims, the adjudicating body essentially has the following concern (at §§37-55):

(1) In line with the high standards of fairness expected in the determination of torture claims (see Prabakar (above) at §44), in case of doubt that the requirements based on such standards cannot be fully satisfied without an oral hearing, the benefit of such doubt should be given to the torture claimant so that an oral hearing should be held.

(2) The adjudicator should ask himself whether there is anything in the claimant’s story, the materials before him, the legal issues and arguments raised, the decision of the Director as well as the written petition of the claimant, which are material to the determination, that the high standards of fairness would require the claimant to be given an opportunity to be heard orally before the decision is made.

(3) The adjudicator should also ask whether there is any advantage of holding an oral hearing as opposed to merely deciding the petition on paper.

17. In the present case, there is no real issue of the credibility of the applicant’s story.  Instead, the entire complaint as put forward was taken on board to form the factual basis for consideration.  There is no basis for suspecting that further evidence might have become available to the Adjudicator, which would be material to the determination, had there been an oral hearing.  Nor is there basis for suspecting that the applicant might not have presented her case fully or in the manner she desired, in the absence of the opportunity to do so orally before the Adjudicator.  As mentioned, despite explanation and probing during the present hearing, she added nothing that was not before the Adjudicator.

18. There is therefore no basis for suspecting that the applicant’s legitimate interest in participating in the decision making has in any material way been compromised in the absence of an oral hearing before the Adjudicator.  It is not reasonably arguable that the dispensation of the oral hearing by the Adjudicator is flawed.  With such procedural fairness concern in mind, I do not consider that the decision of the Adjudicator could be impeached as being unreasonable even on a rigorous and anxious scrutiny.

19. In conclusion, as far as the torture claim is concerned, there is no reasonably arguable ground[8] for judicial review.

ORDER

19   The application for leave is refused.