Case Document

100%Judiciary

HCAL 1564/2018

[2020] HKCFI 1330

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1564 OF 2018

BETWEEN

	Imperial Sheryll Barriga	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 on a foreign domestic helper (“FDH”) contract and overstayed thereafter from 18 July 2014. She surrendered to the Immigration Department on 12 November 2015. The applicant submitted a non-refoulement claim by way of written representation on 17 November 2015. Her non-refoulement claim form was submitted on 29 November 2017.

2.The applicant attended a screening interview on 12 January 2018. The Director of Immigration (“the Director”) dismissed her claim on all grounds by Notice of Decision (“the Decision”) on 17 January 2018. She appealed the Decision to the Torture Claims Appeal Board (“the TCAB”). The adjudicator of the TCAB, Ms Susan Marie Pinto (“the Adjudicator”), heard her appeal on 11 May 2018. The Adjudicator considered her appeal on all applicable grounds including BOR 2 and refused her appeal on 26 July 2018.

3.The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 7 August 2018 and did not request an oral hearing. The matter was therefore considered on the papers.

Background

4.The applicant is a Filipino national. She was born on 7 May 1978, in Iloilo City. She is Catholic and Ilongga. She is married with a son and has a degree in Tourism & Hotel and Restaurant Management. She worked as an FDH in Dubai between 2011 and 2012 and in Hong Kong from April 2013 to November 2013. The applicant claims that she witnessed a shooting in 2009 by a powerful local man. She did not report the killing to the police but nevertheless the man in question threatened her over the phone. As a result, she fled to Cagayan de Oro City for several months during which time her relatives were threatened but not harmed. She and her husband then fled to Bacolod City and applied for a job in Dubai but had to borrow money from a loan shark to pay the employment agent. When she returned to the Philippines in 2012, the applicant was informed that the victim’s family had discovered her whereabouts and wished her to testify. She left once more, this time to Hong Kong. Since that time, the applicant has taken out a further loan from the loan shark and is unable to make the repayments. She therefore fears harm form the killer and the loan shark if she returns to the Philippines.

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 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. She arranged for an oral hearing and treated the appeal as a rehearing. She correctly set out the law and key legal principles including the burden and standard of proof. The Adjudicator considered the claim very carefully and explained her reasoning in some detail. At the core of the Adjudicator’s findings is the issue of the murder, which, upon examination, the Adjudicator did not believe took place. She did not find the applicant to be credible upon this point. As for her indebtedness, this did not stand up to scrutiny under investigation. Accordingly, she had not satisfied the burden placed upon her under any head of claim.

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 those bodies or persons 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 seeks 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 show 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 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. She explained her reasoning. It is clear the applicant was not credible. There is no criticism of her determination, which was open to her 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 23^rd 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 23 June 2020 Imperial Sheryll Barriga 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 23 June 2020 Torture Claims Appeal Board / Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 10032/18/1/305/F541 Department of Justice for Director of Immigration Putative Interested Party’s ref. no.: QA T/C 3299/17 (formerly RBCZ/14258/15)