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HCAL 847/2017
[2020] HKCFI 853
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 847 OF 2017
BETWEEN
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David Honeyleth Manuel
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1st Applicant
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David Gioia Alba |
2nd Applicant |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative Respondent |
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Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by The Honourable Mrs Justice Campbell‑Moffat:
Leave to apply for judicial review be refused.
Observations for the Applicants:
Procedural history
1. The 1st applicant entered Hong Kong legally as a foreign domestic helper (“FDH”) on 16 March 2013. She was arrested by the police on 30 May 2013 and convicted of soliciting on 31 May, receiving a sentence of imprisonment of two months. She lost her job as a result. The 1st applicant submitted a non-refoulement claim by way of written representation on 11 March 2014. The 2nd applicant was born on 23 September 2014. The 1st applicant’s non-refoulement claim form was submitted on 4 December 2014. By a letter dated 16 December 2014, the 1st applicant indicated an intention to join her child to the claim. The non-refoulement claim form for the 2nd applicant was submitted on 30 December 2015.
2. The 1st applicant attended a screening interview on 16 March 2016. The Director of Immigration (“the Director”) dismissed their claims on all grounds by Notice of Decision (“the Decision”) on 26 April 2016 and by Notice of Further decision (“the Further Decision”) on 10 July 2017. They appealed the Decision to the Torture Claims Appeal Board (“the TCAB”). The adjudicator of the TCAB, Ms Corrina Tai (“the Adjudicator”), heard their appeal on 11 September 2017 and considered their appeal on all applicable grounds including BOR 2. She refused their appeal on 27 October 2017.
3. The applicants filed a notice of application on a Form 86 seeking leave to apply for judicial review on 6 November 2017 and did not request an oral hearing. The matter was therefore considered on the papers.
Background
4. The 1st applicant is a Filipino national. She cohabited in the Philippines with the man who is now her husband and has one daughter. As a result of an extra marital affair by her husband in 2008, the 1st applicant rowed with her co-habitee and he assaulted her by slapping her. The 1st applicant also maintains that her co-habitee took drugs. Thereafter, from time to time, they would row and he would hit and kick her. She never sought hospital treatment for her injuries and treated herself. She did not leave her co-habitee as she had a daughter. She did not report the domestic abuse to the police as his family had political connections. Between 2009 and 2010, the couple reconciled and they were persuaded to marry, which they did, in 2010. Immediately thereafter, the abuse recommenced for a few months and then stopped once more between May 2010 and 2012 until one incident in which, under the influence of drugs, he tried to strangle her. As a result, the 1st applicant fled to her mother but her husband followed her and threatened her with a gun. This too was not reported to the police. In March 2013, the 1st applicant left the Philippines and came to work as a FDH. When she was arrested and prosecuted for soliciting in May 2013, her contract of employment was terminated. Once released from prison she met an Italian male and had a short relationship which resulted in the birth of her 2nd daughter. Her husband is still looking for her but does not know of her affair or the birth of the 2nd applicant.
The non-refoulement claim
5. Under the Unified Screening Mechanism (“USM”), the applicants’ claim is to be assessed on all applicable grounds which are:
i. Risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”). Under torture risk, the applicants must establish they have substantial grounds for believing they will be subjected to torture if returned to their home state. Those grounds cannot be speculative or theoretical and the risk of torture must be real and personal. The standard of proof is a low one.
ii. Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“the HKBORO”), Cap 383 and Article 7 of the ICCPR (“BOR 3 risk”). Under BOR 3, the applicants must establish that they have a genuine and substantial risk of being subject to mental or physical torture; cruel, inhuman or degrading ill treatment; or punishment, if returned to their home state. The level of such mental or physical torture etc. must reach a minimum level of severity.
iii. Risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”). Under persecution risk, the applicants must establish that they have a well-founded fear that there is a real chance that they will face persecution based upon race, religion, nationality or membership of a social group or political opinion if they are expelled and returned to their home state.
iv. Risk of a violation of the right to life under Article 2 of section 8 of the HKBORO, Cap 383 and Article 6 of the ICCPR (“BOR 2 risk”). Under BOR 2, the applicants must establish a real risk that they will be arbitrarily deprived of their lives, have a death penalty imposed upon them; or be the victims of genocide or otherwise be deprived of their rights under BOR 2.
6. It is the duty of both the Director and the Adjudicator to weigh all of the available credible, reliable evidence and ascertain whether the applicants had established the factual basis of their claim. The Director and the Adjudicator must then assess the level of harm the applicants say they fear. Each ground of claim above has a relevant level of risk. It is for the applicants to establish that they are the subject of such risk. Under the HKBORO, they must show substantial grounds for believing that the harm which they fear is “foreseeable, real, personal and present”. The question is whether there is a real risk or real chance of the occurrence or recurrence of the harm which they fear.
Decision and Further Decision of the Director
7. The applicants seek to review the decisions of both the Director and the Adjudicator. As the applicants have already utilised the channel of appealing the Director’s decision to the TCAB and the TCAB treated the appeal as a rehearing, the Decision of the Director is not susceptible to judicial review once an appeal to the Board has been pursued by the claimants and dealt with[1].
Decision of the Adjudicator
8. The Adjudicator analysed the applicants’ claim on all applicable grounds. She arranged for an oral hearing and treated the appeal as a rehearing. She correctly set out the law and key legal principles including the burden and standard of proof. Credibility apart, the 1st and 2nd applicants’ claims are very weak. The harm suffered has not been substantiated and resulted in minor injury only. This is a private matter and there are many agencies to whom the applicants could turn for help if refouled to her home country. At no time has she sought such assistance. The Adjudicator considered her allegations in some depth and explained her reasoning in rejecting her claim. She gave the 1st applicant every opportunity to address issues raised but nevertheless found that she had failed to satisfy the burden of proof placed upon her.
Leave to apply for judicial review
9. Judicial review is not a rehearing of the merits of the applicants’ original application for refugee status. This is an application to apply for leave to judicially review the decision of the Adjudicator. The applicants must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by the Adjudicator when dealing with their application in order to obtain leave to judicially review her.
Grounds of review
10. There were no grounds of review. The applicants ask for a re-hearing of their appeal. They have not complained of any procedural irregularity, unfairness or unreasonableness. The applicants have a duty to state the grounds of their intended judicial review and show that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.
Conclusion
11. Despite the fact that the applicants did not submit any grounds of review, I have considered the papers carefully. I have looked in particular inter alia, into the consideration of the suggestion that the applicants may be in danger from the husband if refouled to the Philippines. This was taken into consideration. Further, I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. Despite the onus being upon the applicants, the Adjudicator engaged in a joint endeavour with the 1st applicant (on behalf of herself and her child) and considered all relevant criteria; gave the applicants a reasonable opportunity to state their case and enquired into that case appropriately. There is no criticism of that determination, which was open to the Adjudicator on the facts and eminently reasonable.
12. In my judgement, there is no reasonably arguable basis upon which the applicants could found a claim for judicial review and, as such, there would be no realistic prospect of success if they were to be granted leave. I therefore refuse leave for judicial review.
Dated the 19th day of May 2020.
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(Marcus Wong) |
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for Registrar, High Court |
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.
Notes for the Applicants:
If leave has been refused, and the Applicants wish to appeal this decision, the Applicants or their solicitors must: |
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a) file any notice of appeal within 14 days from the date of judgment or order; and
b) serve any notice of appeal on the respondent and such interested parties as may be directed by the Court; and
c) within 7 days after the date on which service of the notice of appeal was effective, the appellants must lodge with the Registrar:
(i) a copy of the sealed judgment or order and copy of the reasoned decision; and
(ii) two copies of the notice of appeal, one of which shall be endorsed with the amount of the fee paid and the other indorsed with a certificate of the date of service of the notice (Order 59, rule 5(1)); and
d) the Registrar shall then cause the appeal to be set down in the list of appeals and within 4 days thereafter the appellants must give notice to that effect to all parties on whom the notice of appeal was served (Order 59, rule 5(3)); and
e) comply with Order 59 of the Rules of the High Court to properly progress the appeal.
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Sent to the Applicants
on 19 May 2020
David Honeyleth Manuel
David Gioia Alba
Applicants’ ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 19 May 2020
Torture Claims Appeal Board /
Non-refoulement Claims
Petition Office
Putative Respondent’s ref. no.:
USM 3635/16/5/53/F219
USM 3636/16/5/54/F220
Department of Justice
for Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1015/14 & 2452/15
(formerly RBCZ 1660/14 & 11197/15)
RBCZ 9002261/17 & 9002233/17 |
Form CALL-1
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