Minque Mary Ann Dalumpines v. Torture Claims Appeal Board and Another

HCAL 813/2017

[2018] HKCFI 749

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 813 of 2017

BETWEEN

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The applicant is a 39-year-old national from the Philippines who first arrived in Hong Kong on 7 May 2008 to work as a foreign domestic helper and was last permitted to remain so in Hong Kong until 16 October 2012 or two weeks after the termination of her last employment contract.  Upon the early termination of that contract on 16 August 2012, the applicant however did not depart from Hong Kong within the two weeks thereafter and instead overstayed until 14 March 2013 when she was arrested by the police,and for which she was subsequently convicted and sentenced to four weeks’ imprisonment suspended for three years.  On 11 April 2013 she lodged an asylum claim at UNHCR in Hong Kong and was released on recognizance on 3 May 2013 which was subsequently rejected.  On 14 March 2014 she raised her non-refoulement claim with the Immigration Department on the grounds that she would be harmed or killed by her abusive husband orby her creditor for failing to repay her debts due to him if she is refouled to the Philippines.     

2.The applicant was born and raised in Buug, Zamboanga Del Sur, the Philippines where her widow mother and five siblings still live.  After graduating from high school in 1996, she worked in various jobs including as a domestic helper and a secretary in various parts of the Philippines, and married her present husband in late 2000 when they moved to Ozamiz City.  She has no children from the marriage.

3.One day in December 2007 her husband got drunk and argued with her over money.  He then got violent and started hitting and punching her all over her body, and when he grabbed a knife, she became terrified and ran out of their home to take shelter in her uncle’s place in Zamboanga City. She has since lived apart from her husband but is unable to divorce him as there is no such provision in the Philippines.  She therefore decided to work as a domestic helper in Hong Kong, and to pay her employment agency she through her elder sister borrowed 100,000 pesos from a money-lender whose name she does not know but she believes that he is a mayor of some city.  In May 2008 she left the Philippines for Hong Kong to commence her employment.

4.During the first three months of her job she was able to make her loan instalment payments but stopped doing so thereafter as she needed her income to pay for her mother’s medical expenses, and as a result her creditor had been looking for her in her home town threatening to kill her for failing to repay her loan.  Upon completing her first employment contract, the applicant returned to her home in the Philippines to visit her family but was told by her elder sister that her creditor was still looking for her, and so she went into hiding in a neighboring town and eventually returned to Hong Kong for her second employment contract and subsequently raised her non-refoulement claim with the Immigration Department.

5.By a Notice of Decision dated 28 January 2015 the Director of Immigration (“the Director”) rejected her claim on then all applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”), Cap 383 (“BOR 3 risk”),and 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”).   

6.In his detailed decision and on the basis of the applicant’s own case and information the Director assessed the future risk of harm from her husband and her creditor as low and unlikely in particularly given the long lapse of time since 2008, that even though she may not be able to divorce her husband in the Philippines she could get assistance and protection from the police should her husband still post a threat to her after all these years, that her money dispute with the creditor is a private matter and that even if the creditor is indeed a mayor, there is no evidence that his threats were made at the instigation of or with the consent or acquiescence of the state or government of the Philippines, and that objective Country of Origin Information (“COI”) show that internal relocation alternatives are reasonable and available for her to return to other areas of the Philippines such as Manila where it is unlikely for her husband or her creditor to locate her and where she can live and work safely and free of their threats.    

7.The applicant then filed her appeal to the Torture Claims Appeal Board (“the Board”) on 9 February 2015 against the Director’s decision, and for which she attended a hearing in person on 16 October 2015 before the Board but chose not to testify.  On 29 November 2016 her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board did not find the applicant to be a genuine claimant on the basis of her statements and materials provided earlier to the Director and that she chose to remain silent to the many questions and queries raised by the adjudicator during the oral hearing, and agreed with the Director that even if her fear of her husband or the creditor were genuine, objective COI show that she can seek protection from the police or the state, and that internal relocation is both available and reasonable for her to return to live and work safely in other cities of the Philippines.

9.On 3 February 2017 the Director by letter invited the applicant to submit additional facts which she may consider relevant to her non-refoulement claim on all applicable grounds for non-refoulement protection but essentially her right to life under Article 2 of HKBOR (“BOR 2 risk”), and in the absence of any response from her the Director nevertheless proceeded to consider her claim under BOR 2 risk and by a Notice of Further Decision dated 27 February 2017 again rejected her claim.

10.The applicant again appealed to the Board on 9 March 2017 against that decision, and on 13 October 2017 in dismissing her appeal, the Board noted that she had merely repeated a summary of her claim as before the Director without providing any new or additional representation relevant to BOR 2 risk, and concluded that she had failed to establish her case under BOR 2 risk.

11.On 27 October 2017 the applicant filed her Form 86 for leave to apply for judicial review of the decisions of both the Director and the Board for dismissing her claim under BOR 2 risk, and in her supporting affirmation of the same date, she listed the following grounds for her intended challenge:

(a) procedural unfairness on the part of the Board for failing to give her a hearing or screening interview in respect of her claim under BOR 2 risk;

(b) failure on the part of the Director to give her sufficient time to submit additional facts relevant to her claim under BOR 2 risk before rejecting her claim on 3 February 2017; and

(c) failure on the part of both the Director and the Board to properly consider whether there are effective reforms and avenues to redress injustice by the government in the Philippines or that the government will discharge such duties with due diligence.

12.For the applicant’s complain under (a) of not being given any oral hearing for her claim under BOR 2 risk, the Court of Appeal has held that there is no absolute right to an oral hearing as the question must depend on the standard of fairness required, the nature of the decision-making process in question, the procedural history of the matter including whether there has been an oral hearing before, the interest at stake and the importance of the decision, the issues involved and how the presence or absence of an oral hearing would affect the quality of the opportunity to make worthwhile or effective representations: ST v Betty Kwan [2014] 4 HKLRD 177 at paragraph 26.  

13.It is clear that the applicant did before already attend screening interviews with Immigration officer as well as an oral hearing before the Board, although in the latter she chose to remain silent.  Given the facts that she failed to submit any additional information or materials notwithstanding being invited to do so by the Director, nor did she do so when she was presented a second opportunity when she later filed her appeal to the Board, as well as the unequivocal earlier findings by both the Director and the Board of safe and reasonable internal relocation alternatives being available to her, I agree that they were entitled to decide that in the circumstances an oral hearing was not necessary, and I do not see any procedural unfairness in not affording one to the applicant in her subsequent claim under BOR 2 risk.

14.The second ground is closely related to the first.  The applicant does not dispute that she did receive the letter dated 3 February 2017 from the Director inviting her to submit additional facts within 14 days before making his decision rejecting her claim on 27 February 2017 in the absence of any response from her.  I do not find anything inadequate or unreasonable about the time given to the applicant by the Director.  Likewise after filing her appeal to the Board on 9 March 2017 and until its decision more than six months later on 13 October 2017, the applicant had had ample opportunity but never submitted anything new regarding her claim under BOR 2 risk, nor did she ever ask for any oral hearing.  Again I see no merit or basis in this ground of the applicant.

15.As for the last ground, it is clear that the Director did already take into proper consideration and assessment of objective and reliable COI in addressing the applicant’s concerns about the effectiveness of police and state protections available to her as set out in his list of references, as did the Board in its decision, and in the absence of any specifics from the applicant, I am again unable to see any basis that she may have in this ground.

16.Having considered all the decisions made in this lengthy process of assessing the applicant’s claim with rigorous examination and anxious scrutiny, I do not see any error in law or procedural unfairness committed by either the Director or the Board, or any failure on their part to apply high standards of fairness in the process.  In the premises and for these reasons, I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I therefore refuse her leave application.

Dated the 13^th day of April 2018.

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