Bernados Jennifer Pitallo v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 3010/2018 on BabelCite. This High Court CFI judgment was delivered on 4 May 2021.
1. The Applicant is a Philippine national. She first lawfully came into Hong Kong to work as a domestic helper in June 2013. Her last contract of employment was terminated on 1 September 2016 and she was granted visitor status with a limit of stay until 29 September 2016. After that, she remained in Hong Kong as an over-stayer. On 28 November 2016, she surrendered to the Immigration Department and lodged her non-refoulement claim by way of written signification on 11 April 2017.
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HCAL 3010/2018 [2021] HKCFI 1248 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3010 of 2018 BETWEEN
Application for Leave to Apply for Judicial Review NOTIFICATION of the Judge’s decision (Ord. 53 r. 3) Following;
Order by Deputy High Court Judge To:
Observations for the Applicant: Introduction 1.The Applicant is a Philippine national. She first lawfully came into Hong Kong to work as a domestic helper in June 2013. Her last contract of employment was terminated on 1 September 2016 and she was granted visitor status with a limit of stay until 29 September 2016. After that, she remained in Hong Kong as an over-stayer. On 28 November 2016, she surrendered to the Immigration Department and lodged her non-refoulement claim by way of written signification on 11 April 2017. 2.She completed her non-refoulement claim form (“NCF”) with the assistance of the Duty Lawyer Service on 25 October 2017 and attended a screening interview on 10 November 2017 during which she was legally represented by the Duty Lawyer Service. 3.Her non-refoulement claims were assessed on all four applicable grounds available under the Unified Screening Mechanism (“USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3] and BOR 2 Risk[4]. By a Notice of Decision dated 15 November 2017 (the “Notice”), the Director of Immigration (the “Director”) rejected her claim. On 29 November 2017, she lodged an appeal to the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) against the decision of the Director in the Notice. 4.Having reviewed the Applicant’s NCF, the Board considered that no issue arose that needed clarification; and that her appeal could be determined on the basis of all the information supplied and other matters mentioned in the decision without an oral hearing. On 17 December 2018, the Board issued its decision dismissing her appeal (the “Decision”). 5.On 31 December 2018, the Applicant applied for leave to apply for judicial review against the Decision of the Board. The Applicant’s case 6.The Applicant’s case as stated in her NCF is as follows. 7.The Applicant borrowed Philippine Peso 70,000 from a family friend, Salangsang Rodrigo (“Rodrigo”), to pay the administrative fees to an employment agency in Philippine for arranging her employment in Hong Kong. Her agreement with Rodrigo was that she would start repayment three months after commencement of her employment contract until the loan had been repaid. No written loan agreement was drawn up. Having received the loan and paid the employment agency, the Applicant came to Hong Kong to take up her employment. 8.She paid two instalments of Philippine Peso 25,000 in October 2013 and Philippine Peso 15,000 in February 2014. 9.In March 2014, Rodrigo telephoned her informing her that she had not paid interest on the loan which was 15% on the loan capital. The Applicant disagreed and disputed about any agreement on interest on the loan. 10.In May 2014, the Applicant’s mother became ill and was hospitalized. She agreed to share her mother’s medical expenses with her siblings. She paid her share of Philippine Peso 120,000 and was unable to continue to make further repayments to Rodrigo. 11.In January or February 2015, Rodrigo telephoned her threatening that if she did not have the money to repay him, she should marry him as compensation. This was followed by another call some two months later threatening to kill her and/or her family if she did not repay. 12.The Applicant asserted that she feared returning to the Philippines because of the threats from Rodrigo. In addition, she said she was unable to relocate elsewhere in the Philippines as she had no friends or family elsewhere in the country. The finding of the Board 13.In deciding not to hold an oral hearing, the Board reminded itself of the high standard of fairness to be afforded to the Applicant and that it could not dismiss the gravamen of her case regarding the threats from Rodrigo as being untruthful. In other words, the Board proceeded to consider the Applicant’s claims under the four applicable grounds on the basis of her factual case. The questions for the Board were how likely will the harm feared by the Applicant materialise if she returned to the Philippines and on that assessment of likely risk whether she was entitled to protection under any of the four applicable grounds. The loan, the threats and her fears were all accepted by the Board; but not the risk, which was a question which the Board had to assess on the basis of the Applicant’s factual case. The burden of proving genuine fears and risks is on the Applicant, albeit to a relatively low standard. 14.In respect of the Torture Risk ground, the Board identified two reasons why the Applicant’s claim failed. First, the Applicant has to establish substantial grounds for believing that she will be subjected to torture as defined in section 37U(1) of the Immigration Ordinance, if she is refouled to the Philippines and that the risk is personal and present. “Torture” is defined as “an act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person”. The Board held on the evidence, the Applicant has failed to establish that her past experiences amounted to torture as defined in the Ordinance. 15.Second, section 37U(1) requires that the torture must be “inflicted by, or at the instigation of, or with the consent or acquiescence of, a public official or other person acting in an official capacity”. Here, in her Notice of Appeal, the Applicant said:
Thus, the Applicant acknowledged that her dispute with Rodrigo was a personal matter. The torture, if indeed inflicted by Rodrigo, could not be by, or at the instigation of, or with the consent or acquiescence of, a public official or other person acting in an official capacity. 16.BOR 2 Risk relates primarily to the risk of being deprived of life by the government of the home state. The Board was not satisfied that the Applicant had established a personal and real risk of being arbitrarily derived of her life if refouled to the Philippines. It is not the Applicant’s case that she has been charged with a criminal offence in the Philippines and there are substantial grounds to believe that she would face a real risk of being subjected to the death penalty or being arbitrarily deprived of her life in any of the claimed circumstances. Nor is it the Applicant’s case that the humanitarian conditions in Philippines are so dire to render refoulement a violation of her right to life. Her case is simply that she was threatened with death by her creditor. 17.In respect of BOR 3 Risk ground, the Board held that the Applicant’s experiences with regard to Rodrigo were no more than bare assertions which were unsupported by any evidence whatever. Taken as a whole, the ill-treatment she claimed to have suffered did not establish even to the low standard applicable that she would face a genuine and substantial risk of being subjected to ill-treatment of the kind referred to in BOR 3, if she were refouled to the Philippines. 18.In respect of Persecution Risk ground, the Board held that the Applicant’s perceived fear of harm at the hands of Rodrigo were purely private in nature and not for a reason specified in the Convention relating to the Status of Refugees for which non-refoulement protection would be afforded. 19.Even accepted her case in its entirety, the Board was not satisfied the Applicant was entitled to non-refoulement protection under any of the four applicable grounds. Hence, the Board considered it unnecessary to hold an oral hearing. The applicable legal principles 20.The role of the court in judicial review is not to re-assess the non-refoulement claim afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[5]. Grounds for judicial review 21.The Applicant advanced four grounds of appeal in her Notice of Application for leave to apply Judicial Review:
Disposition 22.Under Ground (1), the Applicant accused the Board of having unlawfully fettered its discretion by refusing her appeal on the grounds that she did not satisfy the requirement for non-refoulement protection. This cannot be a valid ground for application for leave. If an applicant did not satisfy the requirement for non-refoulement protection, the Board has no discretion to exercise but to uphold the decision of the Director in the notice and dismiss the appeal. The real question is whether the Decision of the Board is reviewable for having committed errors of law, procedural unfairness or irrationality in its Decision. The answer to this question will become obvious after considering the other grounds. 23.Under Ground (2), the Applicant accused the Board of having acted in a procedurally unfair manner in dealing with her appeal. She did not give any particulars. At the hearing, the Court attempted to solicit from her as to what was the procedural unfairness that she was complaining. After repeated attempts, the only answer she could give was that she felt the Decision was unfair to remove her from Hong Kong and send her back to the Philippines where her life would be at risk. 24.As for her Grounds (3) and (4), the Applicant had no particulars to offer. She said she felt the Decision was unreasonable or irrational because the Board decided against her. 25.As for her Ground (5), the Applicant’s complaint is that her appeal was dismissed without an oral hearing. She had no chance to be heard and was not invited to submit written submissions. Indeed, the Board has discretion to determine an appeal without a hearing pursuant to paragraph 12 of Schedule 1A to the Immigration Ordinance. Paragraph 12 provides as follows:
26.This is not a case where an asylum seeker has his right determined without him being heard. The Applicant made a claim. She completed a non-refoulement claim form with the assistance of the Duty Lawyer Service. She attended a screening interview and was provided with legal representation. She was assisted by a qualified interpreter. She was provided a transcript of the interview. She had the opportunity to present her case to the Director at the screening interview. She was informed of the decision of the Director in rejecting her application and the reasons. She was informed of her right to appeal to the Board, which she exercised. She had the opportunity to state her grounds of appeal in her Notice of Appeal/Petition, which she did. She had presented the entirety of her case to the Board, including the non-refoulement claim form, the transcript of her screening interview, the decision of the Director in the Notice, and the grounds of her appeal to the Board. 27.As stated in paragraph 27 of the Decision, in deciding not to hold an oral hearing, the Board had forefront in its mind the high standard of fairness to be afforded to the Applicant. The Applicant had presented her full case to the Director, which was to be re-considered by the Board. There was nothing which required clarification. The Board then proceeded to make a determination on the basis that the facts as asserted by the Applicant were all true; namely that she borrowed money from Rodrigo, that she was unable to repay and Rodrigo threatened to kill her. There was no primary factual issue to be determined. The remaining issues were for the Board to assess how likely will the harm feared by the Applicant (ie the feared risk) materialise if she returned to the Philippines; and whether on that assessment, the Applicant qualify for protection under any of the four applicable grounds under the USM. The legal requirements under the four applicable grounds are very well settled and were clearly and correctly set out in paragraphs 29 to 38 of the Decision. The present case is clearly one to which paragraph 12 applied. Nothing went amiss with the Board determining the appeal on paper without an oral hearing. 28.As for her Ground (6), the complaint about the Country of Origin Information (“COI”) being not officially recognised and made up of hearsay, the Applicant was unable to identify any COI which she said was offending. Though the Board said that it would consider the Applicant’s case along with the relevant COI, the Board did not find it necessary to do so in the end because the Applicant failed to satisfy the Board of her case of risk. The Board only referred to COI in the context of internal relocation on the assumption that her risk was genuine. It referred to The World Fact Book published by the United States Central Intelligence Agency regarding the size and population of the Philippines. The information in The World Fact Book are from credible sources. Furthermore, by its nature, the COI consist of hearsay information, but, given its sources, are credible. In any event, as the Applicant failed to prove her risk, availability of internal relocation was unnecessary for the Board’s Decision. There is no substance in this ground. 29.As for the overall or general complaint about irrationality and unreasonableness in the Board’s findings, these grounds of complaint are against the finding of facts by the Board. The function of the court in judicial review is not to re-assess the non-refoulement claim afresh. The court will only scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality. Having rigorous examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; and observed a very high standard of fairness. It was on that basis that the Board found there was no factual basis to support the Applicant’s claim for non-refoulement protection under any of the four applicable grounds. The Decision was utterly without fault. Nothing went amiss by the Board determining her appeal without holding an oral hearing. Conclusion 30.Accordingly, the Court concluded that there was nothing that shows there was any error of law or procedural unfairness, unreasonableness or irrationality in the Decision of the Board. The Court found that the Board adhered to a high standard of fairness. The Board’s Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable. The Applicant’s claims are not reasonably arguable. There is no realistic prospect of success. Accordingly, leave to apply for judicial review is refused. Dated the 4th day of May 2021.
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
Form CALL-1 [1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”) [3] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol [4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 [5] [2018] HKCA 524 at para 14(1) |
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