Case Document

100%Judiciary

HCAL495/2018

[2019] HKCFI 1898

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 495 of 2018

BETWEEN

	Palangdosan Marina Lipawen	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 oral submission by the Applicant in open 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 44 (DOB: 5 November 1974).

2.The Applicant claimed she would be harmed or killed by her ex-boyfriend (“Agaldang”), who belonged to a rebel group called the New People’s Army (“NPA”).

3.The Applicant first came to Hong Kong to work as domestic helper in 1988. In 2002, while she was in the Philippines for holiday she met Agaldang who had been her pen pal. They became intimate. The Applicant gave birth to a son in December 2002. Then she went back to work in Hong Kong. Later, the Applicant learnt Agaldang had joined NPA. She thought the NPA people were bad so she tried to cut off all communication with Agaldang. However, Agaldang continued to send her messages.

4.The Applicant met a man called Mohammad in Hong Kong. Agaldang came to know about that in 2005. In 2006, the Applicant gave birth to a daughter (“Aisha”) for Mohammad. Agaldang knew that. He was angry. He repeatedly told Miriam (a mutual friend) that he would kill the Applicant and her daughter if they went back to the Philippines. His threats through Miriam continued until Miriam left Hong Kong for Canada in 2006.

5.Agaldang had also threatened the Applicant's family in the Philippines since 2005. He said he would kill them if the Applicant returned to the country.

6.The Applicant last entered Hong Kong in January 2003 to work as domestic helper, after she had given birth to a son for Agaldang in December 2002 in the Philippines. She had not returned to her country since then.

7.The Applicant’s employment contract was prematurely terminated on 7 April 2004. She overstayed in Hong Kong from 24 April 2004.

8.The Applicant gave birth to a daughter for Mohammad in November 2006. In September 2008, the Applicant and her daughter Aisha were arrested by the police.

9.On 14 September 2009, the Applicant raised a torture claim[1] for herself and Aisha. On 26 July 2011, the Director of Immigration (“the Director”) refused the said torture claim.

10.On 17 August 2011, the Applicant’s appeal on torture claim was refused by the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”).

11.On 8 November 2012, the Applicant's daughter Aisha was granted permanent resident status.

12.On 24 October 2013, the Applicant raised a non-refoulement claim for herself.

13.In the ensuing two-tier screening process, the Director and the Board respectively refused the Applicant’s non-refoulement claim with respect to the remaining three applicable grounds: risk of persecution,[2] risk of torture or cruel, inhuman or degrading treatment or punishment (BOR3 risk)[3] and risk of violation of the right to life (BOR2 risk)[4].

14.On 27 March 2018, the Applicant applied for leave for judicial review.

Timeline

15.Things happened in this order: –

Nov 1988 The Applicant first came to Hong Kong to work as domestic helper.

2003-1-12 The Applicant last entered Hong Kong. Her employment contract was prematurely terminated on 7 April 2004. She overstayed from 24 April 2004.

2006-11-3 The Applicant gave birth to her daughter Aisha.

2008-9-26 The Applicant and her daughter were arrested by the police.

2009-9-14 The Applicant raised a torture claim for herself and her daughter Aisha.

2011-7-26 The Director refused the said torture claim. [“the Director’s 2011 decision”]

2011-8-17 The Applicant’s appeal on torture claim was refused by the Board. [“the Board's 2011 decision”]

2012-11-8 The Applicant's daughter Aisha was granted permanent resident status.

2013-10-24 The Applicant raised a non-refoulement claim for herself.

2017-2-16 The Director refused the Applicant’s non-refoulement claim with respect to these three applicable grounds: persecution risk, BOR2 risk and BOR3 risk. [“the Director’s 2017 decision”]

2017-12-1 The Applicant appeared before the Board for appeal.

2017-12-27 The Board refused the Applicant's claim with respect to these three applicable grounds: persecution risk, BOR2 risk and BOR3 risk. [“the Board’s 2017 decision”]

2018-3-27 The Applicant applied for leave for judicial review in relation to the Board's 2017 decision only.

Respondents

16.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 complaint on a rehearing basis.

17.In Form 86, the Applicant named the Board and the Director as respondents. The Board is the first putative respondent; the Director is the second putative respondent.

18.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 judicial review against the Director's decision.

19.The Applicant stated in Form 86 that relief was to be sought in relation to the Board's 2017 decision. (The Board's 2011 decision was not raised. In any event, any application for leave for judicial review of the Board's 2011 decision now would be time-barred.) Therefore, I shall deal with her application only in relation to the Board's decision.

The Director's decision

20.In his decision dated 26 July 2011, the Director did not accept the Applicant and her daughter (Palangdosan Aisha, aged 4 then) faced any torture risk.

21.Aisha was granted permanent resident status in late 2012. The Applicant raised a non-refoulement claim for herself in October 2014.

22.In his decision dated 16 February 2017, the Director did not accept the Applicant faced any real persecution risk, BOR2 risk or BOR3 risk. He also found 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 those three applicable grounds.

The Board’s decision

23.The Applicant appealed against the Director's 2017 decision to the Board. The Adjudicator interviewed her on 1 December 2017.

24.The Adjudicator found there were inconsistent, contradictory and vague features in the Applicant’s claim. The Adjudicator noted the Applicant did not mention Agaldang’s threats in the screening interview by the Director in October 2008 or in her written statement in February 2009. In that 2008 interview, the Applicant was asked by the Director why she overstayed in Hong Kong. She answered she tried to find a new employer. She said nothing about Agaldang or his threats. In her written statement made in February 2009, the Applicant told the Director that she did not want to go back to the Philippines because she wanted her daughter to stay here. She feared her father and brother would not accept her and Aisha. The Applicant explained to the Adjudicator that she was confused at those times and did not know how to state her claim. The Adjudicator did not accept the Applicant's explanation.

25.The Adjudicator also noted the Applicant contradicted herself on when and how she found out Agaldang was a member of NPA.

26.The Adjudicator did not accept the Applicant faced any persecution risk, BOR2 risk or BOR3 risk. On 27 December 2017, he refused the Applicant's non-refoulement claim with respect to those three applicable grounds.

Grounds of judicial review

27.The Applicant complained against the Director and the Adjudicator. As said in para 19 above, I shall deal with her complaints in relation to the Board's decision only [‘the Board's 2017 decision”].

28.The Applicant complained there were no legal representation and language assistance for her appeal to the Board.

Court hearing

29.The hearing took place on 10 and 20 September 2018. The Applicant was in person. A Tagalog interpreter provided service in court.

30.The Applicant said a friend helped her to prepare Form 86 and the affirmation. At first, she said something was not right in the documents. The hearing was thus adjourned for her to verify her complaints. The Applicant later told the court that all the grounds of judicial review were in order. She had nothing to add.

31.The Applicant also confirmed she had submitted all of her case to the Director and the Adjudicator for their consideration of her non-refoulement claim.

Discussion

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

33.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]

34.The Applicant had been represented by the Duty Lawyer Service up to the Director's 2017 decision dated 16 February 2017. She complained there was no legal representation thereafter.

35.The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings.[8] The Applicant failed to show her case was undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.

36.The Applicant complained there was no language assistance.

37.It is trite that the high standards of fairness do not demand interpretation service being made available all the time to a non-refoulement claimant.[9]

38.In any event, a friend helped the Applicant to prepare Form 86 and the affirmation. Apparently, the Applicant could find someone to assist her with interpretation/translation and dealing with English documents at all material times. Furthermore, the Applicant was assisted by qualified interpreters while she was still represented by the Duty Lawyer Service and during the screening process before the Director and the Adjudicator. The Applicant had much exaggerated her language problem.

39.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

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

Dated the 30^th day of July 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 30/7/2019 Palangdosan Marina Lipawen 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 30/7/2019 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office 1^st Putative Respondent’s ref. no.: USM 6377/17/3/32/F344 Director of Immigration 2^nd Putative Respondent’s ref. no.: QA T/C 3163/16 (formerly RBCZ 2002570/14) 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).

[8] CACV 284/2017 Re Paswan Shibu Lal, para 21.

[9] Re Zaman Muhammad [2018] HKCA 486 at [13]; also Re Gurnishan Singh [2018] HKCA 704 at [13].

Cites 7 cases

Cases cited in this judgment

Re Islam Rafiqul

[2018] HKCA 570