Puno Marierol Montases v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL716/2017

[2018] HKCFI 1629

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 716 of 2017

BETWEEN

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;

Order by Deputy High Court Judge Woodcock:

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge Woodcock):

1.The applicant is a national of the Philippines who came to Hong Kong as a domestic helper on 10 December 2012 on a two-year contract left again on 11 October 2013.  Within that 10-month stay, she worked through three employment visas.  She came again on 7 December 2013 on her fourth employment Visa. That contract was terminated when she was arrested for theft on 16 August 2014.  Two days later, she was convicted and sentenced to a term of six months’ imprisonment.  The applicant then lodged a non-refoulement protection claim in November 2014 which was dismissed by the Director of Immigration (“the Director”) on 24 April 2015 and 5 June 2017.

2.The applicant lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”).  The adjudicator of the TCAB determined the appeal/petition without a hearing pursuant to Section 12 of Schedule 1A of the Immigration Ordinance Cap 115 and dismissed it on 4 September 2017.  The applicant then filed a notice of application for leave to apply for judicial review on 4 October 2017 and requested an oral hearing; the applicant appeared in person on 6 March 2018 after her application for legal aid was refused.

3.The basis of her claim was that if she were to return to the Philippines she would be ill-treated, tortured and persecuted by a local drug trafficker Ramon, his son Ericson as well as Bautista who was her creditor.  Both the Director and the adjudicator of the TCAB set out the applicant’s evidence and case in detail in their decisions therefore, I only intend summarise it here.

4.When the applicant returned to the Philippines after the termination of her contract in October 2013, her boyfriend was murdered by Ramon a drug trafficker for losing a substantial amount of drugs during a recent transaction.  Before he died her boyfriend had confessed to drug trafficking for Ramon, losing the drugs and being frightened that he would lose his life to Ramon.  Initially, the applicant was too frightened to tell the police that she believed Ramon was responsible for his death because he was a very dangerous man but about a month after his death she did go to the station and make a report of her suspicions.

5.At the end of November 2013, the applicant heard from her neighbours that Ramon had been arrested by the police and sentenced to eight years’ imprisonment.  The police had not called the applicant since she had made a police report at the station.  At the beginning of December 2013 the applicant received a telephone call from Ericson who was Ramon’s son; he blamed her for the imprisonment of his father.  He threatened to kill the applicant who immediately hung up the phone.  That was the only phone call the applicant ever received from him.  She did not report this to the police.  The applicant left home that same day for Manila and stayed there until she went back to Hong Kong.

6.The applicant’s other problem was her fear of Bautista who was a leader of a local gang and a loan shark.  He was known to torture debtors if they did not repay him.  She had borrowed 200,000 pesos in 2012 and repaid him 150,000 before borrowing another 150,000 in December 2013.  The interest was 7% monthly with principal and interest to be repaid by December 2014. The applicant had paid him nothing since she borrowed it.  Before the applicant lost contact with her family in August 2014, they told her that Bautista had been looking for her and told her parents that if she did not repay her debt when she went back to the Philippines something bad would happen to her.  Her family told her not to return home because he and Ericson were both looking for her.

7.The adjudicator, as did the Director, analysed the applicant’s claim under all applicable grounds;

(a)   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”);

(b)   risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of Hong Kong Bill of Rights Ordinance Cap 383 and Article 7, International Covenant on Civil and Political Rights (“ICCPR”) (“BOR 3 risk”);

(c)   risk of persecution by reference to the non-refoulement principal under Articles 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“persecution risk”); and

(d)   risk of a violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Article 6 ICCPR (“BOR 2 risk”).

8.The adjudicator determined the appeal/petition without a hearing.  There is no absolute right to an oral hearing and she decided the appeal on the papers.  The adjudicator correctly set out the law and legal principles relevant to the four applicable grounds she considered.  The applicant had no new evidence to present in the rehearing and had only submitted in her grounds of appeal that the Director’s decision was unfair without any particulars in support.  The adjudicator considered the principles in ST v Betty Kwan & Ors, CACV 115/2013 which considered the criteria when it was in the interests of justice to conduct an oral hearing she reminded herself that a high standard of fairness requires a proactive approach in the determination of this appeal/petition.

9.There were no questions of credibility or law to be addressed; the adjudicator accepted the applicant’s evidence in its entirety.  She considered the applicant had suffered no injuries and therefore none that reached the minimum level of severity required to show the applicant had suffered severe physical or mental ill-treatment.  She had not reported the matter to the police or any authority.  The loan matter and revenge dispute concerned were purely private disputes and not on account of race, religion, nationality, membership of a particular social group or political opinion as described in the Refugee Convention for the purposes of a persecution risk.

10.The adjudicator also made reference to several authorities that discuss when and under what circumstances an oral hearing does not advance the applicant’s case and can justly dispose of the appeal/petition, see paragraph 65.  She found the applicant was not deprived of a chance of making ineffective or meaningful representation and confirmed the decision of the Director.

Leave to apply for judicial review

11.I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application and the applicant’s submissions.  The applicant’s supporting affirmation requires some deciphering and essentially sets out 4 grounds.  The following are grounds for seeking leave;

a. procedural impropriety/no oral appeal hearing;

b. procedural impropriety/no chance to present evidence to support a BOR 2 risk claim;

c. miscarriage of justice/her lack of legal representation before TCAB; and

d. error of law by TCAB/ignoring Country of Origin information (“COI”) in applicant’s favour.

12.The applicant’s first ground is without merit.  Although it is never a decision to be taken lightly, I agree with the adjudicator that in this case an oral hearing could be dispensed with and the necessary high standard of fairness could still be maintained.  The applicant had legal representation when her claim was dealt with by the Director therefore, she was protected.  When the adjudicator dealt with the appeal there were no questions of credibility or law to be addressed; she accepted her evidence in its entirety.  The evidence was not complex and obviously her problems were of a purely private nature that needed no clarification.  The adjudicator fully understood her case and applied the law properly.  The applicant’s grounds showed she had nothing new to submit for the rehearing.

13.In her affirmation the applicant accuses the Director of not sending her a letter to invite her to submit information to support a BOR 2 risk claim.  However, during the oral hearing of 6 March 2018 the applicant admitted that she had moved home and had not informed the Immigration Department quickly enough of a change of address.  There is no merit in this ground.

14.The third ground is a complaint by the applicant she was not provided with legal representation for her appeal/petition.  The court was reminded that a “high standard of fairness” should be maintained but legal representation for this applicant only extended to the claim process before the Director.  Once the Director dismissed her claim the applicant received no further free legal advice or assistance.  The applicant submits this is a “violation of the principle of achieving high standard of fairness and should be considered a miscarriage of justice”.

15.It is clear that where the applicant’s fundamental human right not to be subjected to torture is involved, it has been held “high standards of fairness” must be observed by the decision-maker when making the relevant administrative decision, see Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, para 44.  That frequently referred to standard applies to the assessment undertaken by a decision-maker of a torture claim.  That approach for the adjudicator is paramount and cannot be stressed enough.  However, the applicant here has taken it out of context by implying it should mean and include the automatic provision of legal representation to her beyond what was provided by the duty lawyer scheme to her. I do not agree, the fact that it is not automatic cannot be defined as a miscarriage of justice.  The fact the applicant was unrepresented in her appeal has not been shown to be procedurally unfair.  The duty lawyer scheme will continue to represent applicants in their appeals if they are of the view there is merit in their cases.  Their assessment is on a case-by-case basis.

16.The applicant’s last ground submits the TCAB ignored COI in her favour; information which showed injustice, terror and threats on her community all over the Philippines.  That statement is not specific to her claim or her fears. There are no particulars in the affirmation.  The applicant made no report to the police about the threat she received.  The adjudicator obviously adopted the COI relied on by the Director and noted the applicant had not personally been affected by any corruption.  The adjudicator makes reference to the COI she referred to in paragraphs 43 and 44 of her decision without quoting from it but cites the references.  I see no merit in that ground.

17.I do not find any ground that shows there was an error of law by the adjudicator.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.  Same applies to the decision of the Director.

18.In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.

Dated 24^th day of July 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