SIBONGA HAZEL VASQUEZ v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 616/2020

[2024] HKCFI 613

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 616 of 2020

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.  This is the Applicant’s application by Form 86 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 20 March 2020 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 10 October 2018 (the “Notice”).

2.  The Applicant is a Philippine national. She first started working in Hong Kong as a foreign domestic helper in 2010 or 2011. She last entered Hong Kong on 31 March 2017 for employment. She overstayed after her contract of employment was prematurely terminated. She surrendered to the authorities on 9 October 2017. On 19 January 2018, she raised a non-refoulement claim.

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]. 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 claims she would be harmed by her husband and by the family members of a villager from a neighbouring village whom her husband had murdered (the “victim”).

5.  The Applicant, now aged 48, was born in Astorga, Badiangan, Iloilo City, Philippines. She received ten years of education and had about eight years of working experience. She is married and has three children.

6.  Her husband was a drunkard. He assaulted her every week, usually by slapping her face or beating her with fists. She suffered multiple bruises and swellings. She did not seek medical treatment because she could not afford it. She attempted to run away from her husband but he forced her to stay by beating up their children.

7.  To make more money for herself and her children, the Applicant began working as a domestic helper in her aunt’s home in Manila in around 2009. In around 2010, she came to work as a foreign domestic helper in Hong Kong, leaving her children to the care of her mother in Astorga. She remitted her income to her husband and children.

8.  When the Applicant returned to the Philippines for vacation in 2015, she was attacked by her husband. She made a police report which resulted in her husband’s arrest by the police. Subsequently, she withdrew her complaint as she had to return to Hong Kong. Since then she never saw her husband again.

9.  Shortly after she returned to Hong Kong from vacation in March 2017, her mother told her that her husband was very angry about her because she did not inform him about her return trip and she had stopped remitting money to him.

10.  In May 2017, the Applicant’s mother told her that her husband had murdered someone from a neighbouring village and an arrest warrant had been issued against him. Her mother also told her that the victim’s family had threatened to kill the Applicant if they could not find her husband, although they did not evince any intention to harm her mother or other family members. The Applicant also learnt that, for some reasons, the National People’s Army (“NPA”) had been engaged to locate her.

11.  The Applicant claims that she had no information as to the whereabouts of her husband and that he might harm her upon her return because he was still angry at her. She did not believe the Philippine authorities could protect her because it was easy to hire someone to kill another. She also stated that internal relocation within the Philippines was not feasible because the Victim’s family had many family members in Manila.

The finding of the Board

12.  The Board noticed numerous inconsistencies between the Applicant’s testimony before the Board and her evidence before the Director. It found her to be an incredible witness. Some of the most egregious inconsistencies are noted below.

13.  First, in her case before the Director, she claimed that she remained in conjugal relationship with her husband until around 2015 or even 2016 but told the Board that she had effectively separated from him since around 2008.

14.  Second, her testimony before the Board was internally contradictory. On the one hand, she claimed she had effectively separated from her husband in 2008, but on the other, she claimed that she obtained his agreement about seeking work in Hong Kong in around 2011.

15.  Third, in her testimony, she claimed that she did not remit any money to her husband because he was a drunkard but in her case before the Director she said she had remitted some money to her husband in the past.

16.  Fourth, the Applicant testified that her husband told her mother in person that he accidentally killed a man and that the Applicant might be in danger if she came back to the Philippines. That is inconsistent with her evidence before the Board that her mother heard about the murder from a neighbour.

17.  Fifth, the Applicant testified that the victim was related to the local police. That was never mentioned in her case before the Director.

18.  Besides the inconsistencies, the Board also noted that her evidence about her husband’s murder of the victim was entirely based on hearsay and was unreliable. It was also inherently improbable that the victim’s family would be motivated to target her when on her evidence, she had been separated from her husband since 2008.

19.  The Board accepted some of her evidence but not all. It found significant discrepancies in the Applicant’s evidence on matters relevant to the centrepiece of her story. The evidence that her husband warned her not to return because of retaliation from the victim’s family suggests that he had no intention to harm her. The Board accepted her admission that she had no real fear of harm by her husband. It also found she had not discharged the burden of proving that there is a real risk of harm or loss of life by her husband or by the victim’s family.

20.  In relation to Persecution Risk, the Board found there was no real risk of harm from the Applicant’s husband and there was no evidence of probative value that the victim’s family had an intention to kill the Applicant in the event that they cannot retaliate on her husband. Even accepting they had, her dispute with the victim’s family had nothing to do with race, religion, nationality, membership of a particular social group or political opinion and therefore the risk falls outside the 1951 Convention relating to the status of Refugees and its 1967 Protocol.

21.  In respect of BOR 3 Risk ground, the Board found her husband had no ill-intention towards the Applicant and is not a threat to her. With respect to the putative threat by the victim’s family, for the most part it was second or third hand or based on rumour circulating in the local villages which has no probative value. The Board also found it inherently improbable that the threat will materialise. For the same reason, BOR 2 Risk is not engaged.

22.  In respect of Torture Risk ground, the Board found the Applicant had no real fear of harm from her husband. As for the harm from the victim’s family, there was no suggestion that such threats involved a state actor acting in an official capacity or that the state acquiesced in such a threat.

23.  Hence, the Board found the Applicant had failed to establish the factual basis to support her claims for protection under any of the four applicable grounds under the USM and dismissed her appeal against the Director’s Notice.

The legal principles applicable to judicial review

24.  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

25.  At the hearing, after the above legal principles have been explained to her, the Applicant confirmed she had no complaint about procedural unfairness and irrationality in the Decision and left the issue of errors of law to the Court.

26.  However, she had filed an eight-page supporting affirmation setting out the background of her case and her following complaints:

(1)  the Director’s Notice was issued just two days after the screening interview;

(2)  the Board did not take her unique situation into account fairly and sequentially;

(3)  lack of legal and language assistance; and

(4)  the Board was biased, its Decision was based on assumptions without allowing her an opportunity to explain herself.

The thrust of her grounds is about lack of legal representation and language assistance. She claims she has the right to language assistance and legal representation. Without such assistance she could not understand the decision in the Notice, did not know how to formulate her grounds of appeal, did not understand the Decision, did not know how to prepare for the application for leave to apply for judicial review. She even complains that the Decision is unlawful as it is written in a language she does not understand.

27.  As was held by the Court of Appeal in Re Zafar Muazam[6], Re Zunariyah[7], Re Zahid Abbas[8], Re Tariq Farhan[9], and Re Lopchan Subash[10], 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 real question is whether the claimant is prejudiced for want of legal and language assistance.

28.  The Applicants 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 the written submissions, the NCF and answers in the screening interview given by her under legal advice. All these had been presented to the Director, which were then presented to the Board. Despite she was 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 hearing before the Board. The Applicant suffered no prejudice due to lack of legal representation before the Board.

29.  On the language issue, the Court of Appeal held in Karamjit Singh[13] 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. The Filipino community is probably the largest foreign community in Hong Kong from which she could seek assistance. It is absolute non-sense that a decision written in either of the official language is unlawful simply because the Applicant could not understand it.

30.  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. 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 foreign 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.

31.  As for her complaint that the Notice was issued only two days after the screening interview, presumably she is suggesting that it is evidence that the decision was pre-determined and not based on merits after full consideration of the evidence at the screening interview. The decision was quick. That does not mean it was biased. Each case depends on its own fact. In the Court’s view, the case is simple and straightforward. Furthermore, what is important is that the decision in the Notice had been superseded by the Decision of the Board. The Board determined the appeal by way of hearing de novo. The Applicant had no complaint that the Board took ten months to deliberate on the Decision.

32.  As for the Applicant’s complaint about lack of opportunity to explain, paragraph 53 of the Decision shows clearly that she had been invited by the Board to explain her reasons for appealing, she counter-invited the Board to ask her questions and the appeal proceeded by way of dialogue between her and the Board. The Applicant also admitted, when going through her supporting affirmation with her, that she had no complaint about lack of opportunity to explain her case or express herself.

33.  As for her complaint that the Board did not take her unique situation into account fairly and sequentially, having anxiously scrutinised the Decision, this Court is satisfied that there is no substance in this complaint.

Overall scrutiny of the Decision

34.  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 Applicant’s claim is founded on her fear of harm by her husband and by the family of the victim killed by her husband. The Board had carefully weighed the evidence and assessed her credibility.

35.  It found significant discrepancies in the Applicant’s evidence on matters relevant to the centrepiece of her story. It found her incredible and accepted only part of her evidence. It accepted her admission that she had no real fear of harm by her husband. As for the fear of harm from the victim’s family, the Board found she had not discharged the burden of proving that there is a real risk of harm or loss of life by victim’s family. Then, applying the law applicable to non-refoulement protection, it found the Applicant had failed to prove the factual basis to support her claim for protection under any of the four applicable grounds under the USM. It gave detailed reasons for its finding. The Board’s Decision is a finding of fact which 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. The Decision was utterly without fault. There are no errors of law in its Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board observed a very high standard of fairness. Its Decision does satisfy the enhanced Wednesbury test. It is not irrational. Having considered her grounds of application, the Court is satisfied that the Applicant’s claim is not reasonably arguable. There is no realistic prospect of success in the proposed judicial review.

Conclusion

36.  For the above reasons, 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