Limos Gina Tudayan v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

CACV 187/2019

[2019] HKCA 870

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 187 OF 2019

(ON APPEAL FROM HCAL 476 OF 2018)

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Before: Hon Yuen JA, Yau and S T Poon JJ in Court

Date of Hearing: 30 July 2019

Date of Judgment: 6 August 2019

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J U D G M E N T

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Hon Yuen JA (giving the Judgment of the Court):

Introduction

1.1This is an appeal by Ms Limos Gina Tudayan (“the appellant”) from an order of DHCJ Bruno Chan (“the judge”) given on 12 April 2019 dismissing her application for leave to start judicial review proceedings.  The judge’s reasons for that order were given in the judge’s observations set out in a document referred to as the “CALL-1 form” (“the Judge’s Decision”)[1].    

1.2The appellant had applied to the judge for leave to start judicial review proceedings to quash the decision of the Torture Claims Appeals Board (“TCAB”) given on 28 February 2018 rejecting the appellant’s claim that she should not be removed from Hong Kong and returned to her country (“claim for non-refoulement”).  The TCAB’s decision was an appeal against the decision of the Director of Immigration (“the Director”) who had earlier rejected that claim.  

Background

2.The appellant is a national of the Philippines now aged 53.  She went to college and worked as a nursing aide. She married her husband R in 1990 and they have two daughters, the elder of whom (Ms R) is now aged 28.  The appellant first arrived in Hong Kong in 1995 to work as a domestic helper.  After finishing her first contract, she obtained a second employment contract which was terminated in December 2010.  She claimed she lost her passport during the same month and overstayed in Hong Kong.  She surrendered to the Immigration Department on 14 December 2015.  Afterwards, she raised a claim for non-refoulement in August 2016 and lodged her non-refoulement claim form on 22 November 2016. 

The appellant’s allegations

3.The appellant’s allegations in support of her claim have been set out in detail in the TCAB’s Decision and in gist in the Judge’s Decision.  Put briefly, what she alleged was that:

-  In around 2010, her daughter Ms R became pregnant by her boyfriend, J. Although J did not treat Ms R well, Ms R nevertheless moved in with J and his father O, who was said to be wealthy and a friend of the mayor and vice mayor in C. 

-  Ms R gave birth to a baby girl (“the grandchild”) in 2011, but she told the appellant on the telephone that J sometimes beat her (Ms R) up. 

-  In around 2012, the appellant spoke with O about Ms R’s treatment but the appellant claimed O did not care. 

-  In early 2013, J allegedly admitted he had a relationship with another woman.  The appellant complained to O and his wife but they said they did not know about the matter. 

-  Around a week later, when the appellant was talking to O about J’s affair, they had a heated argument in the course of which O threatened to kill her if she returned to the Philippines (“the 1^st threat”).

-  From June 2013 to October 2014, Ms R went to university in Manila and left the grandchild in the care of O and his wife.  In October 2014, on the appellant’s advice, Ms R decided to retrieve the grandchild. O allegedly made a 2^nd verbal threat to kill her because of this (“the 2^nd threat”). 

-  Ms R was awarded custody of the grandchild.  In February 2015, the appellant’s family including Ms R and the grandchild came to visit her in Hong Kong.  

-  When the appellant heard that J was getting married to another woman, she called O and in the course of the telephone conversation, O allegedly made a 3^rd verbal threat to kill her (“the 3^rd threat”).  Apparently O also blocked her calls.  

-  The appellant did not report these incidents to the police or other authorities as O was rich and influential.  The appellant alleged that because O had business connections in various places in the Philippines, she would be located by him wherever she went in the Philippines.    

-  In around October 2016, the appellant learned from her neighbours in the Philippines that O was still interested in her whereabouts.

-  The appellant also added that she was not told until later that R’s nephew A has been missing since September 2016.  She alleged she had heard there had been a dispute between R and O back in March 2016 and that A had helped R.  She claimed that she does not know what has happened to A, but says she is scared by his disappearance. 

4.The appellant’s claim was examined to see if she was at risk under any of the following risks: the “BOR 3 risk”, “persecution risk”, “torture risk” and “BOR 2 risk”. 

5.1What is often referred to as “BOR 3” risk (ie covered by article 3 of the Hong Kong Bill of Rights Ordinance Cap.383) is a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment.

5.2“Persecution risk” refers to the risk of persecution covered by the non-refoulement principle under article 33 of the 1951 Convention relating to the status of refugees and its 1967 protocol, in brief, a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.

5.3“Torture risk” refers to a foreseeable and real present risk of torture covered by Part VIIC of the Immigration Ordinance Cap.115, in brief, severe physical or mental pain or suffering inflicted with state acquiescence, to obtain information, or as punishment or intimidation, or based on discrimination. 

5.4What is often referred to as “BOR 2” risk (ie covered by article 2 of the Hong Kong Bill of Rights Ordinance) is the risk of violation of the right to life.

The Director’s Decision

6.The Director’s representative had an interview with the appellant.  The appellant had legal assistance to prepare her claim.  After the interview, the Director rejected the appellant’s claim for reasons set out in a decision given on 23 December 2016 in respect of “BOR 2 risk”, “BOR 3 risk”, “persecution risk”, and “torture risk”.

The TCAB’s Decision

7.1The appellant appealed to the TCAB which held a hearing at which the appellant was present and had the assistance of an interpreter. 

7.2The TCAB reviewed the evidence of the appellant in detail.  Essentially, the TCAB found that the appellant gave contradictory statements in her non-refoulement claim form and the record of interview (eg about O’s calls [68-69]).  Contrary to the appellant’s allegation that R and Ms R were afraid of O, the scenarios described by the appellant demonstrated the opposite ([67]).  The TCAB also found it incredible that O and his wife and J went to the police station or the Department of Social Welfare and Development in order to “repatriate” the appellant.  The TCAB found the state agencies including the police and the Department had been neutral and fulfilled their legal roles ([87]).  The TCAB dismissed the appeal (“the TCAB’s Decision”).     

Application for leave to start judicial review

8.The appellant then took out an application in the High Court for leave to start judicial review proceedings to quash the TCAB’s Decision.  The appellant set out her grounds in her affirmation in support which may be summarized as follows:

8.1Lack of legal assistance at the appeal hearing, and she was confused about the process.

8.2Lack of translation of the documents at the appeal hearing and she was not aware on what grounds her claim was rejected.

8.3Failing to consider that her life would be in danger upon her return to her country as she had no means of making any complaint to any authorities in the Philippines because they were highly corrupted and would treat her claim as just a domestic case.

The Judge’s Decision

9.The appellant appeared at the hearing before the judge.  As mentioned earlier, the judge refused leave for reasons set out in [13] - [20] of the Form CALL-1 ([2019] HKCFI 937).

“13. For her complaint in ground (1) of being confused by the appeal process to the Board and of not being told or explained of the documents in the hearing bundle by the Board, the applicant already had the benefit of legal representation in presenting her case to the Director, and was able to testify and make representation in her appeal hearing before the Board and to answer questions put to her by the adjudicator without difficulty with the assistance of an interpreter, while she must also be well familiar with most of the documents in the hearing bundle including her NCF which was completed on her instructions to her legal representation from DLS and the record of her screening interview, as well as the Director’s decision which must have been interpreted and explained to her by her lawyer before her decision to lodge her appeal to the Board. As such I do not find any merit in this complaint of the applicant.

14. As for her complaint of not being interpreted or explained as to the Board’s decision, I note that the applicant did not require interpretation for any of her documents submitted to the Director or the Court including her present application and supporting affirmation for which it is also clear that she has had legal assistance in these proceedings. At any rate it cannot form any basis for challenging the decision, and as such I do not find any merit in this complaint either.

15. Regarding her last complaint about the authorities in the Philippines being corrupt and would treat her claim as a domestic case, as she had never sought assistance from the police in the Philippines, such concern of hers is only based on speculation and not supported by the reliable and objective COI referred to by the Director in his decision.

16. The fact is that the applicant’s claim was rejected essentially on her credibility by the adjudicator for the Board with the benefit of hearing her at her oral hearing and based on the evidence available to him, and for the detailed analysis and reasons set out in paragraphs 42 – 71 of the decision in which the applicant has failed to properly identify any legal error or procedural unfairness or irrationality.

17. As has been repeatedly emphasized by the Court of Appeal, the evaluation of risk of harm is primarily a matter for the Director and the adjudicator who are entitled to make their evaluation based on the evidence available to them, and that the Court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being properly and clearly identified by the applicant, as judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Re Nupur Mst [2018] HKCA 524.

18. Furthermore, as it has also been established by both the Director and the Board in their decisions that the risk of harm in the applicant’s claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of the Philippines, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

19. In the premises and having proceeded to consider the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

20. For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse her leave application.”

Appeal to Court of Appeal

10.By a Notice of Appeal filed on 18 April 2019, the appellant appealed the judge’s order to this court.  She stated the following in her Notice of Appeal:

“The [appellant] will face hardship if he is to return back to his home country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.”

Legal Principles

11.The position in law in an appeal to the Court of Appeal, as established by a number of judicial precedents, is as follows.

11.1The primary decision makers in relation to an appellant’s claim for non-refoulement are the Director and (in an unsuccessful claim) the TCAB.  They assess the evidence and are the finders of fact, which may include findings not only in respect of the appellant’s credibility in respect of his individual allegations, but also in respect of the risk (or otherwise) of harm, the availability (or otherwise) of state protection, and the viability (or otherwise) of internal relocation, having regard to relevant matters including the appellant’s personal circumstances as found after the hearing, as well as relevant information regarding the appellant’s country of origin (“Country of Origin Information”, or “COI”).  

11.2When the matter comes before a judge of the Court of First Instance on an application for leave to start judicial review proceedings to quash the decision of the TCAB, the judge’s position is not the same as that of the Director or the TCAB.  Although the judge will adopt an enhanced standard when scrutinizing the decision of the TCAB due to the seriousness of the issue at hand, he does not hear the claim afresh as if he was the TCAB.  In keeping with established principles of judicial review, the judge cannot intervene by way of judicial review unless there are errors of law, or procedural unfairness, or irrationality in the TCAB’s decision.  The relevant cases establishing this position have been conveniently set out in Nupur Mst v Director of Immigration[2]and I will not repeat them here.

11.3Subsequently if the matter comes before the Court of Appeal, the focus is further refined to the scrutiny of the decision of the judge as challenged in the grounds of appeal.  Again, in keeping with established principles governing appeals from a refusal of a judge to grant leave to start judicial review proceedings, the Court of Appeal would only interfere if the appellant can demonstrate that the judge had made errors of law, or had failed to take into account relevant matters, or was otherwise plainly wrong[3].  Generally fresh evidence would not be admitted unless the requirements in Ladd v Marshall[4]are satisfied. Nor would the Court of Appeal generally entertain new arguments based on facts, when those arguments should have been canvassed before coming to this court.

Skeleton Submissions

12.After filing her Notice of Appeal, the appellant was given directions by the Registrar of Civil Appeals to file skeleton submissions.  The appellant filed her skeleton submissions on 6 June 2019 submitting that “high standards of fairness” are required for the judge to deal with her application for leave for judicial review of the appellant’s claim for non-refoulement.   

Discussion

13.Applying the legal principles set out above, it is clear that none of the circumstances permitting this court to interfere with the decision of the judge is present in this case. 

13.1The appellant’s grounds of appeal do not bear any relationship to the Judge’s decision.  The TCAB’s decisions was based on its findings of fact.  The grounds for judicial review from that decision were clearly and correctly dealt with by the judge as set out above.  The COI information had hardly any role to play in this case.  

14.We can discern no error of law, nor can we see any relevant matters which the judge had failed to take into account, nor can it be argued that the judge was plainly wrong in refusing leave to commence judicial review proceedings against the TCAB’s Decision.

Order

15.For the reasons set out above, this appeal must be dismissed.

The applicant, unrepresented, appeared in person