Case Document

100%Judiciary

HCAL 186/2018

[2020] HKCFI 1147

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 186 OF 2018

BETWEEN

	Membrere Susan Biadno	Applicant
	and
	Torture Claims Appeal Board / Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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

Following:

	consideration of the documents only; or
	consideration of the documents and the Applicant being present/absent in open court

Order by The Honourable Mrs Justice Campbell‑Moffat:

Leave to apply for judicial review be refused.

Observations for the Applicant:

Procedural history

1.The applicant entered Hong Kong legally to work as a foreign domestic helper (“FDH”) on 2 May 2008. Her last contract of employment ended prematurely on 21 March 2014 and thereafter she overstayed. The applicant surrendered to the Immigration Department on 13 October 2014 and submitted a non-refoulement claim by way of written representation on 11 November 2014. Her non-refoulement claim form was submitted on 13 February 2015.

2.The applicant attended a screening interview on 6 March 2015. The Director of Immigration (“the Director”) dismissed her claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 20 March 2015 and by Notice of Further Decision (re BOR 2) on 31 May 2017. She appealed the Decision to the Torture Claims Appeal Board (“the TCAB”). The adjudicator of the TCAB, Mr Yu Cheuk‑man (“the Adjudicator”), heard her on 20 September 2016. The Adjudicator considered her appeal on all applicable grounds including BOR 2. The Adjudicator refused her appeal on 1 February 2018.

3.The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 8 February 2018 and did not request an oral hearing. The matter was therefore considered on the papers.

Background

4.The applicant is a Filipina. She was born in Baguio City. She was married in 2000 and has two children, who appear to have been in the care of her parents‑in‑law in another part of the Philippines. In 2004, the applicant worked as a FDH in Taiwan for three years. In 2007, when the applicant returned to the Philippines, the marriage deteriorated and the applicant maintains that her husband physically abused her several times a week. She did not need to seek medical treatment for her injuries as they were only bruises. Unbeknown to her husband, the applicant applied to work as an FDH in Hong Kong and left her home to do so in May 2008. She says that her husband looked for her in the Philippines and threatened to kill her when he found her. According to the applicant, on the four occasions on which she returned to the Philippines to see her children, she saw them without his knowledge and nothing occurred to her. She maintains that he did not know that she was working in Hong Kong.

The non-refoulement claim

5.Under the Unified Screening Mechanism (“USM”), the applicant’s claim is to be assessed on all applicable grounds which are:

i.     Risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”). Under torture risk, the applicant must establish she has substantial grounds for believing she will be subjected to torture if returned to her home state. Those grounds cannot be speculative or theoretical and the risk of torture must be real and personal. The standard of proof is a low one.

ii.     Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“the HKBORO”), Cap 383 and Article 7 of the ICCPR (“BOR 3 risk”). Under BOR 3, the applicant must establish that she has a genuine and substantial risk of being subject to mental or physical torture; cruel, inhuman or degrading ill treatment; or punishment, if returned to her home state. The level of such mental or physical torture etc. must reach a minimum level of severity.

iii.     Risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”). Under persecution risk, the applicant must establish that she has a well-founded fear that there is a real chance that she will face persecution based upon race, religion, nationality or membership of a social group or political opinion if she is expelled and returned to her home state.

iv.     Risk of a violation of the right to life under Article 2 of section 8 of the HKBORO, Cap 383 and Article 6 of the ICCPR (“BOR 2 risk”). Under BOR 2, the applicant must establish a real risk that she will be arbitrarily deprived of her life, have a death penalty imposed upon her; or be the victim of genocide or otherwise be deprived of her rights under BOR 2.

6.It is the duty of both the Director and the Adjudicator to weigh all of the available credible, reliable evidence and ascertain whether the applicant had established the factual basis of her claim. The Director and the Adjudicator must then assess the level of harm the applicant says she fears. Each ground of claim above has a relevant level of risk. It is for the applicant to establish that she is the subject of such risk. Under the HKBORO, she must show substantial grounds for believing that the harm which she fears is “foreseeable, real, personal and present”. The question is whether there is a real risk or real chance of the occurrence or recurrence of the harm which she fears.

Decision and Further Decision of the Director

7.The applicant seeks to review the decisions of both the Director and the Adjudicator. As the applicant has already utilised the channel of appealing the Director’s decision to the TCAB and the TCAB treated the appeal as a rehearing, the Decision of the Director is not susceptible to judicial review once an appeal to the Board has been pursued by the claimant and dealt with[1].

Decision of the Adjudicator

8.The Adjudicator analysed the applicant’s claim on all applicable grounds. He arranged for an oral hearing and treated the appeal as a rehearing. The applicant maintained that she had been assaulted by her husband on several occasions although the injuries had been minor. The Adjudicator gave her the benefit of the doubt and accepted that case at its highest. He correctly set out the law and key legal principles including the burden and standard of proof. The assaults clearly did not amount to torture and arose within a private domestic relationship and there were agencies which would be able to provide sufficient protection. As for her suggestion that her husband would at some point in the future seek to kill her, that was speculation based upon hearsay evidence and she had safely returned home previously without incident.

Leave to apply for judicial review

9.Judicial review is not a rehearing of the merits of the applicant’s original application for refugee status. This is an application to apply for leave to judicially review the decision of the Adjudicator. The applicant must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by the Adjudicator when dealing with her application in order to obtain leave to judicially review them.

Grounds of review

10.There were no grounds of review. The applicant asks for a re-hearing of her appeal. She has not complained of any procedural irregularity, unfairness or unreasonableness. The applicant has a duty to state the grounds of her intended judicial review and that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

11.Despite the fact that the applicant did not submit any grounds of review, I have considered the papers carefully. I considered the nature of the claim put forward and the materials available to the Adjudicator at the time of the hearing. I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. Despite the onus being upon the applicant, the Adjudicator engaged in a joint endeavour with the applicant and considered all relevant criteria; gave the applicant a reasonable opportunity to state her case and enquired into that case appropriately. This was not a strong case. There is no criticism of the determination, which was open to the Adjudicator on the facts and eminently reasonable.

12.In my judgement, there is no reasonably arguable basis upon which the applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if she were to be granted leave. I therefore refuse leave for judicial review.

Dated the 9^th day of June 2020.

	(Marcus Wong)
	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 refused, and the Applicant wishes to appeal this decision, the Applicant or his solicitors must:
a) file any notice of appeal within 14 days from the date of judgment or order; and b) serve any notice of appeal on the respondent and such interested parties as may be directed by the Court; and c) within 7 days after the date on which service of the notice of appeal was effective, the appellant must lodge with the Registrar: (i) a copy of the sealed judgment or order and copy of the reasoned decision; and (ii) two copies of the notice of appeal, one of which shall be endorsed with the amount of the fee paid and the other indorsed with a certificate of the date of service of the notice (Order 59, rule 5(1)); and d) the Registrar shall then cause the appeal to be set down in the list of appeals and within 4 days thereafter the appellant must give notice to that effect to all parties on whom the notice of appeal was served (Order 59, rule 5(3)); and e) comply with Order 59 of the Rules of the High Court to properly progress the appeal.		Sent to the Applicant on 9 June 2020 Membrere Susan Biadno 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 9 June 2020 Torture Claims Appeal Board / Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 1284/15/3/204/F73 Department of Justice for Director of Immigration Putative Interested Party’s ref. no.: RBCZ/ 9001667/17 (formerly RBCZ 3214/14)