RE GOROSPE MARY ANGELINE O

CACV 87/2018

[2018] HKCA 568

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 87 OF 2018

(ON APPEAL FROM HCAL NO. 630 of 2017)

_____________________________________

_____________________________________

________________

J U D G M E N T

________________

Hon Chu JA (giving the Judgment of the Court):

1.  On 28 June 2018, this Court (Chu and Barma JJA) handed down our judgment dismissing the applicant’s appeal against the decision of Campbell-Moffat J (“the Judge”) given on 20 March 2018 refusing her leave to apply for judicial review.  

2.  By a Notice of Motion dated 9 July 2018, the applicant applied for leave to appeal against our judgment to the Court of Final Appeal.

3.  In the Notice of Motion, the applicant requested for an oral hearing.  However, as provided in paragraph 3 of Practice Direction 2.1 on Application for Leave to Appeal to the Court of Final Appeal filed in the Court of Appeal in Civil Cases, application for leave to appeal to the Court of Final Appeal shall be dealt with and determined on paper unless the court directs otherwise.  Having considered the Notice of Motion and the applicant’s written submission, we do not see any reason for departing from the usual practice.  We consider that the application can be properly disposed of without an oral hearing, and have proceeded to consider the application on paper.  We now hand down our judgment.

4.  Under section 22(1)(b) of the Court of Final Appeal Ordinance, Cap. 484, leave to appeal to the Court of Final Appeal may be granted if the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

5.  In the Notice of Motion, other than stating that there is merit in her complaint of procedural unfairness and she disagreed that her intended judicial review was not reasonably arguable and had no prospect of success, the applicant raised two specific grounds as follows (at paragraphs 2 and 3):

(1)  “The fact that there was not a separate appeal is an indication that my case has been compiled together and be considered in one go, and therefore I respectfully submit that in this regard my BOR 2 should in fact been referred back to the Duty Lawyer Service for the completeness of the case.”

(2)  “I have never suggested that I am entitled to free legal representation at all stages of the proceedings. I am rather focusing merely on the BOR 2 consideration.”

6.  These grounds relate only to the circumstances of the applicant’s case and do not involve any question of great, general or public importance. 

7.  Further, there are no merits in these grounds and also the complaint of procedural unfairness.  As pointed out in paragraph 16 of this Court’s judgment, in June 2017, the applicant was aware the Director was about to consider her claim under BOR 2 risk ground, and she had responded to the Director’s invitation to provide information and representation.  It was open to her to provide all information and representation relevant to the BOR 2 risk assessment.  It was also open to her to seek assistance from the Duty Lawyer Service at that stage. 

8.  Similarly, as noted in paragraph 16 of this Court’s judgment, when the applicant appeared before the Board, she consented to the Board dealing with her claim on all applicable grounds (except the torture ground since the applicant had previously unsuccessfully appealed to the Board against the Director’s rejection of her torture claim).  She had full opportunity to put forward information and representation relevant to a BOR 2 claim, and she in fact provided additional documents and information to the Board.  She could have approached the Duty Lawyer Service to seek assistance in relation to her appeal before the Board.  The Judge had correctly pointed out in paragraph 13 of CALL-1 Form that Duty Lawyer Service will continue to represent applicants in appeals before the Board if they are satisfied there are merits and it is appropriate to do so.  The applicant had also not particularised what was the unfairness complained of; she had not identified what information or representation she would have advanced, but was unable to advance, before the Board to support a BOR 2 claim.

9.  There is also no other reason for submitting the proposed appeal to the Court of Final Appeal for decision. 

10.  For the reasons set out above, the applicant has failed to meet the threshold imposed by section 22(1)(b) to enable her to obtain leave to appeal to the Court of Final Appeal. Accordingly, we dismiss the Notice of Motion.

CACV 87/2018

[2018] HKCA 360

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 87 OF 2018

(ON APPEAL FROM HCAL NO. 630 of 2017)

________________________

________________________

________________

JUDGMENT

________________

Hon Chu JA (giving the Judgment of the Court):

1.  This is the applicant’s appeal against the decision of Campbell-Moffat J (“the Judge”) given on 20 March 2018 refusing her leave to apply for judicial review.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dated 25 August 2017 dismissing her appeal against the decisions of the Director of Immigration (“the Director”) dated 22 April 2016 and 26 June 2017 rejecting her non-refoulement claim.  The applicant consents to her appeal being heard before two judges.

2.  The applicant is a Filipino national.  She came to Hong Kong in 1994 and had been working as a domestic helper until 31 July 2001, when her employment contract was terminated.  On 3 November 2009, she was arrested for overstaying in Hong Kong.  On 7 November 2009, the applicant made a torture claim[1], which was rejected by the Director on 25 July 2011.  The applicant’s petition against the decision was rejected on 16 August 2011.  By a written representation dated 7 March 2014, the applicant made a non-refoulement protection claim.

3.  The applicant’s claim is based on her fear that she would be killed by her husband and members of the New People’s Army (“NPA”) if she were to return to the Philippines because she had refused to join the NPA.

4.  The applicant married her husband in 1983 and they lived in the province of Isabela.  Shortly after the marriage, she heard that her husband was a member of NPA and was involved in kidnapping and killing activities.  Her husband admitted this when she confronted him.  He also demanded the applicant to join the NPA.  After she refused, he began to assault her.  On the first occasion, he punched and kicked her causing bruises all over her body and a black eye.  She did not seek medical help.  After this, they had several quarrels and whenever the applicant refused to go with him to join NPA, her husband would punch and kick her causing bruises and marks all over her body.  On one occasion, the applicant’s husband and five NPA members even threatened to kill her if she did not join NPA.  When she refused, her husband again kicked and punched her, but the NPA members did not physically attack her.

5.  The applicant did not make any report to the police.  She had in April 1983 made a report to a village councillor, who recorded the complaint and told the applicant that if anything should happen to her in future, her husband and the NPA would be held responsible.

6.  The applicant continued to cohabit with her husband until 1990, during which the applicant’s husband regularly assaulted her.  In 1989, they had a baby girl.  In 1990, the applicant decided to run away from her husband and went to Cagayan Valley.  One day, she accidentally ran into her husband and five NPA members in the street.  A quarrel ensued between them, in the course of which the applicant’s husband first hit the applicant with his hand, then pulled out a gun to hit her on her back. He forced the applicant to go with him, and together with the NPA people threatened her.  They only went away after the applicant collapsed.  The applicant sustained bruises all over her body and a swollen back.  She did not seek medical help, but had sought help from a faith healer.  This was the last time the applicant saw her husband.  A few months later, she relocated to Baguio City where she moved from one place to another.  In 1994, she came to Hong Kong to work as a domestic helper on the strength of her Philippines passport.

7.  In respect of the non-refoulement claim made in March 2014, the Director assessed it under all applicable grounds other than the risk of torture[2] in view of the previous rejection of her torture claim (see [2] above) , namely, BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5].  The Director assessed the level of risk of harm from the applicant’s husband and the NPA members to be low, and considered that the availability of state protection and internal relocation alternatives will further lower or negate the perceived risk.  The Director did not accept that the applicant’s claim falls within the BOR 3 risk or persecution risk ground and by the decision dated 22 April 2016 rejected her claim on these grounds.  On 4 May 2016, the applicant appealed the Director’s decision to the Board.

8.  In the meantime, by letter dated 8 June 2017, the Director invited the applicant to submit on or before 22 June 2017 additional facts relevant to her non-refoulement claim on all applicable grounds, including a BOR 2 risk claim.  The applicant sent a letter dated 19 June 2017 to the Director in which she stated (see [3] of the Director’s further decision dated 26 June 2017):

“I want to apply for Hong Kong Bill of Rights, Article 2 (BOR 2) because my life is still in danger if they sent me back to my country (Philippines). The people I’m afraid of still exist. Thank you very much Sir/Madam and I hope and pray that you are going to grant my application for BOR 2.”

9.  By a further decision dated 26 June 2017, the Director rejected the applicant’s claim on the BOR 2 risk ground.  As the applicant’s appeal against the Director’s decision dated 22 April 2016 was then pending determination, the Director informed the applicant in the further decision that it was not necessary for her to make a separate and further petition to the Board. 

10.  The Board held an oral hearing on 9 August 2017 to hear the applicant’s appeal.  The applicant attended the hearing and was provided with interpretation service.  The applicant consented to the Board dealing with both the Director’s decision dated 22 April 2016 and the further decision dated 26 June 2017 (see [6] of the Board’s Decision).  The applicant elected to give evidence and provided additional documents and information to the Board (see [8] and [9] of the Board’s decision). 

11.  For reasons given in [23] of the decision, the Board considered the level of risk of the applicant being tortured or killed to be low.  The Board also agreed that reasonable state protection and internal relocation are available to the applicant in the Philippines.  The Board further considered that the reason underlying the conflict between the applicant and her husband is purely personal and private and does not come within the reasons under the 1951 Convention.  Having analysed the facts and circumstances of the applicant’s claim and considered the relevant law, the Board concluded that the applicant’s claim does not come within either of the BOR 2 risk, BOR 3 risk or persecution risk grounds.    

12.  The applicant filed a Notice of Application for Leave to Apply for Judicial Review (Form 86) on 18 September 2017. She did not set out any grounds for her intended judicial review application.  In her supporting affirmation, the applicant stated: (1) She did not receive any letter from the Director inviting submission of additional information; (2) The Director only relied on Country of Original Information (COI) that was adverse to her claim, but life in reality was different from COI; and (3) The decision maker was biased and rejected her appeal without a hearing.

13.  On 20 March 2018, the Judge, on a consideration of the papers, refused to give leave to apply for judicial review.  Her reasons as set out in [10] to [19] of the CALL-1 Form are:

“Grounds of Review

10. The Applicant submitted Grounds of Review which are clearly not her own document and which on occasion refer to incidents which are wholly unrelated to her case. To the extent, I am able to do so, I have elicited the following relevant submissions.

11. It is submitted by the Applicant that the Adjudicator and the Director failed to carefully consider the Applicant’s claim. There are no particulars provided for this submission but in any event I am satisfied that the Director and Adjudicator did consider the Applicant’s case fairly based upon the evidence before them and the relevant available material as well as the facts as they found them to be. This ground is not arguable.

12. The Applicant also submitted that she did not receive any further correspondence from the Director in respect of a BOR 2 claim. She did not understand the legal terminology of the claim and was not given the opportunity to submit any further grounds and attend an interview. A letter dated 8 June 2017 was sent to the registered address of the Applicant whose duty it was to inform the Director of any change of address. She has not suggested that she had in fact changed address at the material time. The BOR 2 claim was dealt with on 26 June 2017 prior to the hearing before the Adjudicator, at which time it was open to the Applicant to raise any issue arising from that claim with the Adjudicator, and to present any additional materials in support of that claim. The specific matter was raised with the Applicant by the Adjudicator and she agreed to continue on the hearing date. In any event, the Adjudicator dealt with the appeal under BOR 2 fully and gave reasons for her decision. This ground also fails to show an arguable case.

13. The Applicant was not provided with legal representation before the TCAB. The Applicant submits that she was treated unfairly by reason of the fact that she was not provided with legal representation before the Adjudicator. The fact the Applicant was unrepresented in her appeal has not been shown by her to be procedurally unfair. The duty lawyer scheme will continue to represent applicants in their appeal if they are of the view there is merit in their cases. There is no requirement to represent all such appellants regardless of merit. Their assessment is on a case-by-case basis. As the Applicant was absent, I am unable to ascertain if she did apply to the scheme for legal representation at that stage and whether they refused her application. If so, on what grounds did they refuse it? Nevertheless, there was an opportunity for the Applicant to make representation to the Adjudicator about this issue and she did not do so. This ground is not reasonably arguable.

14. The Applicant was denied legal representation for leave to judicially review the decisions of the Director and the Adjudicator. No application has been made to the Director of Legal Aid (“DLA”) for legal assistance for this review although, it is clear from the grounds of review provided that the Applicant has received assistance from someone. It was open for the Applicant to apply for legal representation just as it was open to the DLA to refuse such representation if he chose to do so on the merits. There is no procedural unfairness if the Applicant chose not to apply in a timely fashion for the purposes of this application or the DLA chose to refuse such an application (if she had made one), so long as that decision was carried out properly on the merits. This ground is not arguable.

15. The Applicant submits that she was not provided with an interpreter. The record shows that was not the case. This ground must fail.

16. The Applicant submits that the Director and Adjudicator ignored COI information. This is not the case. Relevant COI information was considered. At no stage had the Applicant resorted to state agencies in any form. There was ample evidence to indicate that if she had done so, there was no reason to believe, she would not have been protected. The Applicant did not indicate what, if any, material the Director and Adjudicator should have considered.

17. The Applicant submitted that the Adjudicator had been irrational in that she found that the allegations of the Applicant reached the “minimum level of severity” under BOR 3, which is inconsistent with her finding that her level of risk if returned to the Philippines was low. In fact, paragraph 22 of the Decision of the Adjudicator refers to the claim made by the Applicant which, if proved, would amount to a “minimum level of severity”. However, paragraph 23 refers to the Adjudicator’s view of the facts and to her assessment of risk of being subject to that “minimum level of severity”, which the Adjudicator found to be low. There is no irrationality in that regard.

Conclusion

18. I have considered the papers, grounds and submissions 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 Director and Adjudicator 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 their determinations, which were open to them on the facts and eminently reasonable.

19. 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.”

14.  On 3 April 2018, the applicant issued a Notice of Appeal to appeal against the Judge’s decision.  She advanced the following grounds in her Notice of Appeal:

(1)   The judgment was unfair.

(2)   She challenges [12] of the CALL-1 Form.  She truly did not understand the legal terminology of the claim and was not given the opportunity to submit any further grounds and to attend an interview.  It is unfair she was not given any assistance throughout her claim when others were given lawyers for their BOR 2 risk claim.  Had she been given a lawyer and an interpreter, she would be able to understand more about the process and know what to do.

(3)   The Judge seems to be suggesting that she had the chance to have the BOR 2 claim dealt with by the Board.  However, she acted in person before the Board.  Moreover, the availability of an appeal does not mean her case has been determined fairly.  Having an opportunity to have her case heard by a different authority does not justify the Director determining her case without making sure that he reached out to her or referring her case back to the Duty Lawyer Service.

15.  In her written submission, the applicant added that she never lodged an appeal to the Board against the Director’s further decision on the BOR 2 risk claim.  She also referred to the high standard of fairness set out in the Court of Final Appeal judgment in Sakthevel Prabakar v. Secretary for Security (2004) 7 HKCFAR 187 and also the case of FB & Ors v. Director of Immigration & Anor (unreported) HCAL 51/2007.

16.  We are of the view that the applicant’s complaint of procedural unfairness in relation to the assessment of her claim under the BOR 2 risk ground is wholly devoid of merits.  She had by her own letter dated 19 June 2017 asked the Director to consider her claim under the BOR 2 risk ground.  Not only does this letter show that she was aware of the Director’s letter to her inviting further relevant information to support her claim, including a claim under BOR 2, but it also shows that at the time she knew about a BOR 2 risk claim and/or had access to assistance to understanding and making a BOR 2 risk claim.  It was open to the applicant to include in the letter any information, other than what she had written, that she considered to be relevant to her non-refoulement claim.  She also has not identified in her Form 86 or supporting affirmation what information she would have advanced, but did not have a chance to advance, to support her claim.  There is simply no basis for the applicant’s complaint that the Director did not reach out to her or afford her with an opportunity to provide additional information, or that there is any unfairness in this regard.

17.  Further, when the applicant appeared before the Board, she had provided four additional documents and gave additional information orally to support her claim.  She was also aware that the Board was dealing with both of the Director’s decisions.  In this regard, the fact that the applicant had not specifically lodged a separate appeal against the Director’s further decision is entirely irrelevant.  As the Judge observed in [12] of her decision, the applicant could have raised with the Board any issue she had on the Director’s determination on the BOR 2 risk claim, or adduced any relevant additional information to support a BOR 2 risk claim, in addition to what she had adduced before the Board.  We see no merit in the applicant’s criticism of [12] of the Judge’s decision.   

18.   As to the applicant’s reference to the high standard of fairness, this Court has held that neither the high standard of fairness laid down in Sakthevel Prabakar v. Secretary for Security, supra, nor the judgment of FB v. Director of Immigration, supra, prescribes that a non-refoulement claimant has an absolute right to free legal representation at all stages of the proceedings: see Re Zunariyah[2018] HKCA 14, Re Zahid Abbas[2018] HKCA 15, Re Tariq Farhan[2018] HKCA 17, and Re Lopchan Subash[2018] HKCA 37.  In the circumstances of the present case, we do not find anything amiss arising from the non-availability of legal representation when the Director invited the applicant to submit additional information to support a BOR 2 risk claim or in the process before the Board.

19.  In our view, both the Director and the Board had fully reviewed the applicant’s case under all applicable grounds.  We can discern no error of law or procedure, nor any evidence of procedural unfairness, nor a failure to adhere to a high standard of fairness. We agree with the Judge that the applicant’s intended judicial review is not reasonably arguable and has no prospect of success.       

20.  Accordingly, we dismiss the applicant’s appeal. We make no order on the costs of the appeal.