Busque Rovelyn Magayam v. Torture Claims Appeal Board / Non Refoulement Claims Petition Office and Another

CACV 379/2019

[2019] HKCA 1391

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 379 OF 2019

(ON APPEAL FROM HCAL NO 940 OF 2018)

___________________

___________________

____________________

J U D G M E N T

____________________

Hon S T Poon J (giving the Judgment of the Court):

1.This is the appeal against the decision of Deputy High Court Judge Josiah Lam on 2 August 2019 refusing leave to the applicant to apply for judicial review of the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning her non‑refoulement protection claim.

2.The applicant is a 44-year-old national of the Philippines who entered Hong Kong as a visitor on 21 May 2013.  She overstayed from 7 June 2013 and was arrested by the police on 19 August 2013.  She raised a non-refoulement claim on 7 March 2014.  She claimed that she would be harmed or killed by the New People’s Army (“NPA”), which is a powerful rebel group, as she stopped giving them money.

The Director’s decisions

3.By a Notice of Decision dated 25 June 2015, the Director rejected the applicant’s non-refoulement claim on the grounds including torture risk^[1], BOR 3 risk^[2] and persecution risk^[3]. 

4.The Director assessed that the level of risk of harm upon the applicant’s return to the Philippines is low because of the low intensity and frequency of past ill-treatment from the people of NPA and there is no information to suggest that she was the target of the NPA.  Furthermore, the Director considered that the availability of state protection and internal relocation alternatives further lowers or negates the level of risk.  Thus, the non-refoulement application was rejected by the Director. 

5.By a Notice of Further Decision dated 13 December 2016, the Director rejected the applicant’s claim in the absence of response from her to the invitation to submit additional facts which may be relevant to her non-refoulement claim on all applicable grounds including right to life under article 2 of the Hong Kong Bill of Rights.

The Board’s decision

6.The applicant attended the hearing of the appeal against the Director’s decisions on 7 February 2017. The Board found that the applicant’s information is untruthful and unreliable in material aspects.  The Board considered that it is unlikely that the feared ill-treatment will materialize as there was a lapse of around 5 years that the NPA has not looked for the applicant.  The Board also assessed that state protection and internal relocation alternatives are available in the Philippines so the applicant can relocate to another place in the country to avoid the perceived risk.  Therefore, the Board rejected the appeal on 14 May 2018. 

The intended judicial review

7.The applicant filed a Form 86 and an affirmation on 25 May 2018 to seek leave to apply for judicial review against the decisions of the Director and the Board.

The judge’s decision

8.As 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^[4], the judge deals with the application in relation to the Board’s decision only.

9.The Judge held that the applicant’s complaints are not reasonably arguable for reasons stated in paragraphs 28 to 35 of his decision dated 2 August 2019.  The Judge reviewed the adjudicator’s decision under rigorous examination and anxious scrutiny and found that the adjudicator had proper basis for his decision which was not Wednesbury unreasonable, the adjudicator had made no errors of law and there was no procedural unfairness.  As the applicant has no realistic prospect of success in the sought judicial review, the leave application was refused on 2 August 2019.

The grounds of appeal

10.The applicant filed a Notice of Appeal against the decision of the judge on 15 August 2019.  The grounds of appeal in her Notice of Appeal may be summarized as follows:

(1)  The court and authorities did not exercise caution and diligence in handling her case and it has been procedurally unfair.

(2)  The judge failed to consider the significance and level of unfairness for the lack of language assistance.  The arrangement of lack of interpretation service should be considered independently of whether there has been interpretation/translation from her friends.  The judge formed the view that there has been help at the material time which is baseless presumption. 

(3)  The applicant attended court hearing without the assistance of legal representative so she was not able to understand what she should say about her complaints against the Director and the Board.  The applicant could not provide further submission for her claim on BOR 2 risk as she was unable to obtain legal assistance.

(4)  The judge failed to elaborate the reasons for rejecting her claim and the judge intentionally shortened the judgment to make it hard for the applicant to seek to appeal.

11.The applicant reiterated her complaints on lack of language and legal assistance in her written submission dated 7 November 2019.

12.The applicant relied on similar grounds in her leave application.

Legal Principles

13.The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

14.An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

Analysis and disposition

15.In her written submission, the applicant complained that the judge erred in assuming that she could find someone to assist her with interpretation/translation and deal with English documents at all material times.  In fact, the applicant admitted that she got help from friends but she asserted that such help would not be professional and it is not true that she could find someone to help at all material times. 

16.Apart from the fact that the applicant could find someone to assist her with interpretation/translation, the judge also rejected her arguments regarding the lack of language assistance for the following reasons:

(1)  High standards of fairness do not demand interpretation service being made available all the time to a non-refoulement claimant:  Re Zaman Muhammad [2018] HKCA 486 at [13];

(2)  There was no evidence to support the applicant’s saying that she was not assisted by interpreter in the Board hearing.  There was no evidence she had complained to the adjudicator or asked for adjournment at the appeal hearing.  She elected not to testify before the adjudicator.

17.The judge’s decision in this regard is well justified.

18.The applicant criticized that the judge erred in determining that “Ground 1” has failed just because she “already had the benefit of legal representation in presenting her case to the Director of Immigration”.  She submitted that “Ground 1” referred to the lack of assistance due to her language failure and this has nothing to do with the legal representation before the Director.

19.In fact, the judge’s decision dated 2 August 2019 does not contain the alleged reasoning.  The wording of “Ground 1” was also not used by the judge in the decision. Therefore, such criticism is without basis.

20.In any event the ground pertaining to the lack of legal representation after the Director’s decision is without merits as 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^[5].

21.The applicant contended that the judge did not explain why he did not accept her assertion that she was not aware of the Director’s decision on BOR 2.  She also submitted that the Director determined her claim on BOR 2 risk without obtaining any additional information from her which she could not provide due to the lack of help from lawyer and interpreter. 

22.The judge refused to deal with her complaints regarding the Director’s decisions in the original leave application as it was confirmed by the Court of Appeal decision in Re Moshsin Ali^[6] that the decision of the Director 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.  Therefore, this ground is untenable.  

23.The applicant also relied on the ground that the judge failed to elaborate the reasons for rejecting her claim and intentionally shortened the judgment to make it hard for her to seek an appeal.   As a matter of fact, the judge explained in detail the reasons for the refusal of leave in paragraphs 28 to 37 of his decision. Thus, this ground is bound to fail. 

24.The applicant failed to demonstrate that the court and authorities did not exercise caution and diligence in handling her case and that it has been procedurally unfair as alleged.  She failed to show that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.  None of the grounds of appeal raised by the applicant are viable for reversing the decision of the judge. 

25.The appeal should be dismissed as there is no merit in the appeal and no prospect of success in the intended application for judicial review.

Applicant (Appellant), appearing in person

[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of the Hong Kong Bill of Rights.

[3] This refers to the risk of persecution with reference to the non‑refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees.

[4] Re Moshsin Ali [2018] HKCA 549, CACV54/2018, unreported, 24 August 2018, at §45

[5] CACV 284/2017 Re: Paswan Shibu Lal, para 21

[6] [2018] HKCA 549, CACV54/2018, unreported, 24 August 2018, at §45