Abubo Janet Sawadan v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL715/2017

[2018] HKCFI 1665

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 715 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 Filipino national who came to Hong Kong to work as a foreign domestic helper between 1998 and 2009; she last arrived on 8 May 2009 but her contract was terminated on 23 October 2009.  She overstayed from 7 November 2009 and was arrested by the police on 30 July 2013, was convicted of a breach of her condition of stay and sentenced to 12 weeks’ imprisonment.  She lodged a non-refoulement protection claim after her release from prison.  The Director of Immigration (“the Director”) rejected her claim on 30 November 2016. The applicant lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”) which rejected her appeal on 30 June 2017.  She filed a notice of application for leave to apply for judicial review on 4 October 2017 and requested an oral hearing; she appeared in person having had her legal aid application refused.

2.The applicant’s Form 86 was filed four days late; according to Order 53 rule 4 she should have made this application within three months of the date of the TCAB decision.  She did give a reason for the short delay in her application which I accepted and I granted an extension of time to file this application.

3.The basis of her claim was that if she were to return to the Philippines her life would be in danger because she was unable to repay her loan to a creditor.  The Director and the adjudicator of the TCAB set out her evidence and her case in detail in their decisions therefore, there is no need to repeat it here.

4.In short, she was married with two adult children in the Philippines but her husband deserted the family a long time ago.  She borrowed 100,000 pesos from a moneylender in the Philippines just before her last contract and has defaulted on that loan since 2009 after she lost her employment in Hong Kong.  She had to change her phone number in Hong Kong to avoid his harassing calls when she stopped paying.  Her case is that if she returned to the Philippines, the creditor would threaten her and force her to repay the debt by taking her home from her as well as harming her.  When the creditor could no longer contact her in Hong Kong, he went to her house and threatened her children who lived there by themselves.  He or his associates would tell her children that they will take the house from them.  The creditor also approached the applicant’s siblings to demand repayment of her loan.

5.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”).

6.The adjudicator treated the appeal as a rehearing and the applicant adopted all the information in the appeal bundle and confirmed it was all true and accurate.  She also elected to answer questions from the adjudicator of the TCAB.  The adjudicator correctly set out the law and key legal principles applicable to all the grounds in her decision. She also set out the applicant’s case.  The adjudicator considered Country of Origin information (“COI”) and found State protection available to the applicant if she was at any risk if refouled and internal relocation a viable option without undue hardship.

7.The adjudicator asked the applicant why she said the creditor would harm her or that her life would be endangered by him.  She said it was because he had threatened to seize her house which meant she and her children would be homeless.  There was no mention of physical violence.  She did not know if he had begun any legal proceedings against her since 2009.  What he did do was come to the house regularly to tell the children or her siblings to tell the applicant to repay her debt; there were no threats of physical violence or actual harm except to say that the house would be seized but no legal or physical action has been taken since 2009.

8.The adjudicator found it hard to believe the applicant borrowed 100,000 pesos at 10% interest per month/120% per annum.  She would have had to pay 10,000 pesos per month which would have been about HK$2,000 per month, half her salary in 2009.  The adjudicator found it hard to believe she would burden herself with such a heavy debt and liability; especially when she could not provide any documentary proof of the loan and said the creditor did not require the title deeds of the house as collateral.  The adjudicator doubted the loan existed because she found it hard to believe she would avoid returning home because the creditor had threatened to seize her house but leave her children living in the very same house to face him alone.

9.However, the adjudicator found that even if her evidence was true, on her own facts she could not make out a case for non-refoulement protection.  She had never suffered any physical violence or actual harm nor was there any threat of physical violence or actual harm to come, there was only a threat that her house would be seized if there was no repayment forthcoming.  The adjudicator said there was virtually no evidence that her life was in danger if refouled to the Philippines.

10.Even on her own facts the applicant was unsuccessful in showing she was at risk of torture, unable to invoke the protection of BOR 2 or BOR 3 and could not prove a persecution risk for the purpose of a non-refoulement protection claim.  He 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.  The applicant’s affirmation is confusing and misleading in that there are facts which are wrong.

12.Paragraphs 7, 8, 15 and 21 of her affirmation refers to a decision of the Director dated 19 January 2016 where the Director rejects the applicant’s BOR 2 risk claim without any knowledge of the applicant.  This is plainly wrong because the Director dealt with the applicant’s BOR 2 risk together with other applicable grounds and rejected it on 30 November 2016.  The applicant had no idea of this discrepancy because she did not draft the affirmation, her friend wrote it on her behalf.  She had no idea of its contents or of her own grounds.

13.Another glaring mistake comes in paragraphs 9, 10, 11 and 18 where the TCAB are accused of dismissing her appeal without an oral hearing.  The decision of the TCAB dated 30 June 2017 clearly states the oral appeal hearing was conducted on 9 May 2017 and the applicant appeared in person.  She also elected to give evidence and answer the adjudicator’s questions.  The applicant again could not explain this mistake in her affirmation.

14.The first ground that I can decipher comes in paragraph 16 where the TCAB is accused of failing to give sufficient weight to the past ill-treatment received by the applicant and failing to take into account relevant COI information or properly consider COI information.  In paragraph 20, the TCAB is accused of ignoring COI information in the applicant’s favour.  There are no particulars to support these submissions.  The applicant has not been the victim of any ill-treatment, even on her own evidence.  The adjudicator set out relevant, up-to-date and objective COI information in her decision.  There is no merit in this broad ground.

15.The only other ground I can decipher from her affirmation is a complaint by the applicant she was not provided with legal representation for his appeal/petition or interpretation services.  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 his 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”.

16.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.

17.In submissions during the oral hearing the applicant added that she missed her family but wanted to stay in Hong Kong a little longer to solve her problem.  She told this court that she was working secretly in Hong Kong to solve her problem which was why she needed more time.  I am sure this is the true reason behind her application; to give her more time in Hong Kong. This is a complete abuse of the process and the system as well as a waste of judicial resources.

18.There is no substance in the grounds of this application.  There was no error of law by the adjudicator nor any 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.

19.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 25^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