Case Document

100%Judiciary

HCAL 309/2018

[2020] HKCFI 1401

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 309 OF 2018

BETWEEN

	Diantan Teresita Gracia	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 originally entered Hong Kong as a foreign domestic helper (“FDH”) in 1991. Her last contract of employment came to an end in 2002 and she overstayed from 23 January 2003. She was arrested by the police on 15 May 2009. The applicant submitted a claim by way of written representation on 19 May 2009 and a further one on 27 September 2013. Her torture claim questionnaire was submitted on 24 October 2012 and her supplementary claim form under the Unified Screening Mechanism (“USM”) procedure on 17 November 2015.

2.The applicant attended screening interviews on 1 November 2012 and 21 January 2016. The Director of Immigration (“the Director”) dismissed her claim on all grounds (not including that under BOR 2) by Notice of Decision (“the Decision”) on 15 February 2016 and by Notice of Further Decision (re BOR 2) on 19 June 2017. She appealed the Decision to the Torture Claims Appeal Board (“the TCAB”). The adjudicator of the TCAB, Mr Kevin Anthony Browne (“the Adjudicator”), heard her appeal on 15 September 2017. The Adjudicator considered her appeal on all applicable grounds including BOR 2 and refused her appeal on 22 February 2018.

3.The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 27 February 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 2 January 1958, in Negros Occidental. She is single. Her father passed away in 1999. She first came to Hong Kong as a FDH in 1991. Whilst in Hong Kong, the applicant found out that her sister had obtained a loan with the applicant as a guarantor. That loan was supplemented to cover her brother’s funeral expenses in 2000. By this time, the applicant was already overstaying in Hong Kong and could not assist financially. The loan sharks took to threatening the applicant’s sister and mother. The applicant believes that the stress of this killed her mother who passed away in 2002. When she returned to Hong Kong after attending her mother’s funeral, the applicant lost contact with her family. Since then the applicant believes the loan sharks have been looking for her sister and may have had her brother killed. She believed that they burnt down her family home. She was also told that someone had come to her old employer’s home in Hong Kong to look for her and seeking repayment of the loan. He had apparently told someone that he would kill her. Because she was overstaying at that time, she did not report the incident to the local Hong Kong police. After this the applicant was informed that her sister had been murdered by the loan sharks.

The non-refoulement claim

5.Under the 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. He correctly set out the law and key legal principles including the burden and standard of proof. The Adjudicator explained the procedure to be adopted and the applicant’s rights to add or amend anything she had previously said as well as comment further if she wished. It was clear that this was essentially an issue between her sister and the loan sharks and that the applicant had never met them. She had travelled to and fro to the Philippines without harm and all of the information she sought to rely upon was hearsay enhanced by pure speculation. The applicant had never been approached personally or come to any harm. He further ascertained that the applicant had no intention of returning to her home area if refouled.

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. The applicant’s case was wholly without merit. 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. There is no criticism of his determination, which was open to him 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 12^th day of August 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 12 August 2020 Diantan Teresita Gracia 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 12 August 2020 Torture Claims Appeal Board / Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 3184/16/2/150/F200 Department of Justice for Director of Immigration Putative Interested Party’s ref. no.: RBCZ 9002119/17 [T7S104] QA T/C 2060/15 (formerly RBCZ 2001155/14)