Case Document

100%Judiciary

HCAL668/2018

[2019] HKCFI 871

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 668 of 2018

BETWEEN

	De Guzman Gennelyn Dela Cruz	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	1^st Putative Respondent
	Director of Immigration	2^nd Putative Respondent

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

Following:

consideration of documents only

consideration of documents and the Applicant was absent from court

Order by Deputy High Court Judge Josiah Lam:

Leave to apply for judicial review be refused.

Observations for the Applicant

Background

1.The Applicant is a national of the Philippines. She is now aged 33 (DOB: 21 September 1985).

2.The Applicant claimed she would be killed by her husband Warren.

3.The Applicant married Warren in 2007. They had two children.

4.Warren was an alcoholic. He often abused the Applicant. He had hurt the Applicant and nearly killed her. The Applicant left home and lived with her parents and her parents-in-law. Warren had promised to change but failed to live up to his words.

5.In June 2014, the Applicant left Warren for good. She came to Hong Kong to work as domestic helper. She did not contact Warren but the latter sent messages to her Facebook from time to time.

6.The Applicant started a relationship with an Indian man soon after she had been here.

7.The Applicant’s employment contract was terminated on 5 December 2014. She returned to the Philippines. She did not go home but Warren found her. One day, Warren found out from the Applicant’s mobile phone that she had an affair with the Indian man. Warren threatened to kill the Applicant if she would go to Hong Kong again.

8.Despite the threat, the Applicant returned to Hong Kong on 4 February 2015 to work as domestic helper. After a short time, she stopped seeing the Indian man but Warren continued to send threatening messages to her due to her adultery.

9.The Applicant started another relationship with a Pakistani man in Hong Kong. Warren found it out too. He kept on threatening the Applicant. The Applicant was in fear.

10.The Applicant's second employment contract was terminated prematurely on 30 June 2015. She dared not return to the Philippines. She overstayed in Hong Kong from 15 July 2015. She surrendered to the Immigration Department on 24 July 2015 and lodged a non-refoulement claim on 17 December 2015.

11.In the ensuing two-tier screening process here, the Director of Immigration (“the Director”) and the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”) respectively refused the Applicant’s claim with respect to all the four applicable grounds: (i) risk of torture,[1] (ii) risk of persecution,[2] (iii) risk of torture or cruel, inhuman or degrading treatment or punishment (BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4].

12.On 18 April 2018, the Applicant applied for leave for judicial review.

Timeline

13.Things happened in this order: –

2014-6-20 The Applicant first came to Hong Kong to work as domestic helper. Her employment contract was later terminated. She returned to the Philippines on 5 December 2014 to wait for the visa of her second employment contract.

2015-2-4 The Applicant entered Hong Kong again to work as domestic helper. Her second employment contract was prematurely terminated on 30 June 2015. She overstayed here from 15 July 2015.

2015-7-24 The Applicant surrendered to the Immigration Department.

2015-12-17 The Applicant raised a non-refoulement claim.

2017-8-10 The Director refused the Applicant’s claim with respect to all the four applicable grounds: torture risk, persecution risk, BOR2 risk and BOR3 risk. [‘the Director's decision”]

2018-3-5 The Applicant appeared before the Board for appeal.

2018-4-12 The Adjudicator refused the Applicant’s appeal with respect to all the four applicable grounds. [‘the Board's decision”]

2018-4-18 The Applicant applied for leave for judicial review.

Respondents

14.The Unified Screening Mechanism is a two-tier process. The Director screens an applicant’s non-refoulement claim first; the applicant may appeal to the Board which deals with his/her case on a rehearing basis.

15.In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Board and the Director as respondents. The Board is the first putative respondent; the Director is the second putative respondent.

16.In Re Moshsin Ali, the Court of Appeal states that “the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”[5] The Applicant cannot seek leave for judicial review against the Director's decision. Therefore, I shall deal with her application in relation to the Board's decision only.

The Director's decision

17.In his decision dated 10 August 2017, the Director did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. He also considered reasonable state protection and internal relocation were available to the Applicant in any event. The Director refused the Applicant’s non-refoulement claim with respect to all the four applicable grounds.

The Board's decision

18.The Applicant appealed to the Board. The Adjudicator interviewed her on 5 March 2018.

19.Even on the Applicant's own account of events, the Adjudicator found the complained situation was only a case of domestic violence. It was not for any Convention reasons (race, religion, nationality, membership of a particular social group or political opinion). The Adjudicator found Warren’s death threats were merely verbal. The Applicant had never been inflicted with ill-treatment to the minimum level of severity. Her complained situation did not qualify as ‘torture’ within the meaning of section 37U(1) of the Immigration Ordinance. The Adjudicator also noted the Applicant had no contact with Warren for a long time. There was no evidence Warren would bother to look for the Applicant in the Philippines. There was also no evidence Warren was resourceful enough to locate the Applicant even if he so wanted. The Adjudicator considered reasonable state protection and internal relocation were available to the Applicant in any event.

20.The Adjudicator did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. On 12 April 2018, he refused the Applicant’s appeal with respect to all the four applicable grounds.

Grounds of judicial review

21.In her affirmation, the Applicant made complaints against the Director and the Adjudicator. She said they failed to consider the issues of state protection and state acquiescence; failed to conduct sufficient and independent inquiry or critical analysis of country-of-origin information ("COI"); failed to justify why certain COI was preferred; cherry-picked information; failed to consider her psychological strain arising from the threats; failed to give reasons for their decision on BOR3 risk.

Court hearing

22.The hearing was scheduled for 21 August 2018. The Applicant was absent.

23.The court has not heard any explanation of the Applicant's absence.

Discussion

24.Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

25.A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[6] Nevertheless, it is said in Re Islam Rafiqul: –

“The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision-makers are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.” [7]

26.As said in paragraph 16 above, I shall deal with the Applicant's application for leave for judicial review in relation to the Board's decision only as the Director's decision had gone on appeal to the Board for rehearing.

27.The Applicant complained the Adjudicator failed to give sufficient reasons for his decision on BOR3 risk. That was not true. The Adjudicator gave clear and sufficient reasons for his determination of the Applicant's claim with respect to all the four applicable grounds including BOR3 risk. The instant case was a clear one that the Applicant did not pass the high-threshold test required for BOR3 risk.

28.The Adjudicator found the Applicant had not been inflicted with ill-treatment by Warren to the minimum level of severity. That meant she had not got any severe suffering (physical or mental). It was not correct for the Applicant to say the Adjudicator failed to consider her psychological strain. He did and he was not satisfied the Applicant had any severe suffering.

29.The Applicant had not made any complaint to the Philippines authorities. There was no evidence to show the authorities knew of her alleged predicament. Thus, there was no question of state acquiescence of any kind.

30.The Adjudicator had considered relevant COI. There was no evidence that he failed to conduct sufficient and independent inquiry or critical analysis. The Adjudicator need not state the mental process of his evaluating COI. He found reasonable state protection and internal relocation were available to the Applicant in any event. Such decision was not Wednesbury unreasonable in the circumstance.

31.There was no evidence the Adjudicator cherry-picked information.

32.I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding, conclusion and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate her case. The Adjudicator was acquainted with the facts. He considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.

Conclusion

33.The Applicant's complaints are not reasonably arguable. She has no realistic prospect of success in the sought judicial review. I therefore refuse to grant her leave for judicial review.

Dated the 4^th day of March 2019

(Henry Ng)
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 Applicant:

If leave has been granted, the Applicant or the Applicant’s solicitors must:

a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);

b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and

c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).

Sent to the Applicant on 4/4/2019
De Guzman Gennelyn Dela Cruz

Applicant’s ref. no:
Nil.

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 4/4/2019

Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
1^st Putative Respondent’s ref. no.:
USM 8250/17/8/288/F426

Director of Immigration
2^nd Putative Respondent’s ref. no.:
QA T/C 1180/17 (formerly RBCZ/10361/16)

Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)

Form CALL-1

[1] As defined in Part VIIC of the Immigration Ordinance, Cap 115, which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

[2] By reference to the non-refoulement principle under Articles 33 and 1A(2) of the 1951 Convention relating to the Status of Refugees.

[3] Under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4] Under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[5] CACV 54/2018, para 45.

[6] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.

[7] CACV 219/2018 [2018] HKCA 570, para 14(1).

Cites 4 cases

Cases cited in this judgment