Case Document

100%Judiciary

HCAL940/2018

[2019] HKCFI 1904

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 940 of 2018

BETWEEN

	Busque Rovelyn Magayam	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 43 (DOB: 29 October 1975).

2.The Applicant claimed she would be harmed or killed by the New People’s Army (“NPA”). NPA was a powerful rebel group. The Philippines authorities could not deal with them.

3.The Applicant said she was first blackmailed by some NPA people in late 2012. She only had around 20,000 pesos to give them. The men also took away her goods. The Applicant did not report the matter to the police as she thought they could not help.

4.In April 2013, the NPA people came again. They asked for money. The Applicant gave them 50,000 pesos. She and her husband were told to keep tight-lipped. The men warned the couple that they had to provide money to them further.

5.The Applicant had been operating a second-hand goods shop. She would come to Hong Kong to make purchase at times. Between 2008 and 2013, she had travelled in and out of Hong Kong as visitor on a number of occasions. The Applicant last entered Hong Kong on 21 May 2013. She was allowed to stay till 6 June 2013. The Applicant overstayed from 7 June 2013. On 19 August 2013, she was arrested by the police. She applied for non-refoulement protection on 7 March 2014.

6.The Applicant said her husband called her from the Philippines in early June 2013. He asked her not to go back because the NPA people were looking for her since she had stopped giving them money.

7.The Applicant alleged she lost contact with her family in December 2014 so she did not have further news of NPA.

8.In the ensuing two-tier screening process, 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: risk of torture[1], 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].

9.On 25 May 2018, the Applicant applied for leave for judicial review.

Timeline

10.Things happened in this order: –

2013-5-21 The Applicant last entered Hong Kong as visitor. She overstayed from 7 June 2013.

2013-8-19 The Applicant was arrested by the police.

2014-3-7 The Applicant raised a non-refoulement claim.

2015-6-25 The Director refused the Applicant’s claim with respect to these three applicable grounds: torture risk, persecution risk and BOR3 risk. [“the Director’s decision”]

2016-11-14 The Director invited the Applicant to submit additional facts for the consideration of the fourth applicable ground: BOR2 risk.

2016-11-28 The Applicant failed to submit additional facts by the deadline or thereafter.

2016-12-13 The Director refused the Applicant’s claim with respect to BOR2 risk. [“the Director’s further decision”]

2017-2-7 The Applicant appeared before the Board for appeal.

2018-5-14 The Board refused the Applicant's claim with respect to all the four applicable grounds. [“the Board’s decision”]

2018-5-25 The Applicant applied for leave for judicial review.

Respondents

11.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.

12.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.

13.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 of the Director's decisions. Therefore, I shall deal with her application for leave for judicial review in relation to the Board's decision only.

The Director's decision

14.In his decision dated 25 June 2015, the Director did not accept the Applicant faced any real torture risk, persecution 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 claim with respect to those three applicable grounds.

15.In his further decision dated 13 December 2016, the Director refused the Applicant’s claim with respect to the fourth applicable ground: BOR2 risk.

The Board’s decision

16.The Applicant appealed to the Board. The Adjudicator interviewed her on 7 February 2017. She elected not to testify.

17.The Adjudicator found many unconvincing features in the Applicant’s claim. He did not find the Applicant credible.

18.Even on the Applicant's account of events, the Adjudicator found no evidence that NPA had really been looking for her since mid-2013. The Adjudicator considered it was unlikely NPA would still look for the Applicant after the lapse of several years. He found the Applicant had not been inflicted with suffering to the minimum level of severity. The complained situation did not involve state instigation or acquiescence. It had nothing to do with officials. It was not on account of any Convention reasons: race, religion, nationality, membership of a particular social group or political opinion. The Adjudicator studied relevant country-of-origin information ("COI"). He was satisfied reasonable state protection and internal relocation were available to the Applicant in any event.

19.The Adjudicator did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. On 14 May 2018, he refused the Applicant’s claim with respect to all the four applicable grounds.

Grounds of judicial review

20.The Applicant complained against the Director's decisions and the Adjudicator’s decision. As said in para 13 above, I shall deal with her application in relation to the Adjudicator’s decision only.

21.The Applicant said she had no legal representation after the Director's decision. There was a lack of language assistance. She said she was given the appeal bundle shortly before the Board hearing and nobody read the documents to her.

22.The Applicant complained the Adjudicator’s decision against her was unfair.

Court hearing

23.The hearing took place on 19 September 2018. The Applicant was in person. An Ilocano interpreter provided service in court.

24.The Applicant said a friend helped her to prepare Form 86 and the affirmation. All the grounds of judicial review were in the documents. She had nothing to add.

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

Discussion

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

27.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]

28.The Applicant said she had no legal representation after the Director's decision.

29.The Applicant had been represented by the Duty Lawyer Service up to the Director's decision dated 25 June 2015. 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.

30.The Applicant complained there was a lack of language assistance.

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

32.In any event, in the current application 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. The Applicant had much exaggerated her language problem.

33.There was no evidence to support the Applicant’s saying that she was not assisted by the interpreter in the Board hearing. There was no evidence she had complained to the Adjudicator or asked for adjournment during the appeal hearing. She elected not to testify before the Adjudicator.

34.The Applicant complained she received the appeal bundle shortly before the Board hearing. She did not provide specifics.

35.According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’[10] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[11], the Director shall send copies of the hearing bundle to the Board and to the Applicant no later than 5 working days prior to the date of the hearing. There was no evidence the rules had been breached.

36.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. He 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. She elected not to testify before the Adjudicator. 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

37.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 2^nd day of August 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 2/8/2019 Busque Rovelyn Magayam 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 2/8/2019 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office 1^st Putative Respondent’s ref. no.: USM 1833/15/7/17/F134 Director of Immigration 2^nd Putative Respondent’s ref. no.: QA T/C 565/15 & RBCZ 9000753/16 (formerly RBCZ 2071/14) 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]; and Re Gurnishan Singh [2018] HKCA 704 at [13].

[10] The ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’ was issued by the Chairperson of the Board pursuant to section 16 of Schedule 1A to the Immigration Ordinance, Cap. 115 of the Laws of Hong Kong.

[11] The ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’ was issued by the Chairperson of the Board, who had been in her capacity delegated by the Chief Executive with the authority under Article 48(13) of the Basic Law of the Hong Kong Special Administrative Region to determine the practice and procedure of the Administrative Non-refoulement Claims Petition Scheme.

Cites 7 cases

Cases cited in this judgment