DEWEY ALICE SITO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE [Decision on Leave Application]

HCAL 569/2019 [2024] HKCFI 2572 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 569 of 2019 BETWEEN Dewey Alice Sito Applicant and Torture Claims Appeal Board / Non-Refoulement Claims Petition Office and Director of Immigration Putative Respondent 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 absent in open court; Order by Deputy High Court Judge To: Leave to apply for Judicial Review be refused. Observations for the Applicant: Introduction This is the Applicant’s application by Form 86 filed on 28 February 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (the “Board”) dated 31 December 2018 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 25 May 2018 (the “Notice”). The Applicant is a Philippine national. She last entered Hong Kong on 12 April 2007 to work as a foreign domestic helper. Her employment was prematurely terminated after she was convicted of a gambling offence. She did not leave Hong Kong within the prescribed period. On 1 May 2009, she was arrested for overstaying. On 14 May 2009, she raised a claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the “CAT Claim”). That claim was refused by the then Petition Team on 30 May 2013 and that decision became final. She then made a non-refoulement claim under the Unified Screening Mechanism (the “USM”) on 17 September 2013. In due course, her claim was assessed on the remaining three applicable grounds, namely: BOR 3 Risk; Persecution Risk; and BOR 2 Risk. Her claim was rejected by the Director’s Notice. Her appeal against the decision of the Director in the Notice was dismissed by the Board’s Decision. She now applies for leave to apply for judicial review of that Decision. The Applicant had requested an oral hearing. A hearing on 8 May 2024 was scheduled and notice of hearing was sent to her by post to her address as stated in her Form 86. It has not been returned through the post. A court staff had attempted to contact her by phone on the afternoon of the day before the hearing, but found the telephone services had been temporarily suspended. The Applicant had never informed the Court of any change of address. She did not appear at the hearing. The Court was satisfied that the notice of hearing had been properly served on the Applicant on her address last known to the Court. Having considered the nature of the application and issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court considered the leave application may be justly determined on paper without an oral hearing. On 13 May 2024, the Court informed the Applicant by letter that the judgment in relation to her leave application will be ready for delivery in the following month. The letter was returned on 31 May 2024 marked “no such person”. Enquires with the Immigration Department revealed that the Applicant had moved. Accordingly, another hearing was scheduled on 19 September 2024 for her and notice of hearing was sent to her by post to her address as discovered from the Immigration Department. However, the Applicant did not appear at the hearing. Having again satisfied itself that the notice of hearing had been duly served on the Applicant, that the Court had done its best to bring the hearing to her notice and that her leave application may be justly determined on paper, the Court made the following determination in her absence. The Applicant’s case The following account of the Applicant’s case is mainly based on the information in the torture claim form (“TCF”) and the Supplementary Claim Form (“SCF”) prepared by her with legal assistance and the records of her screening interviews in the presence of her lawyer. In gist, she claims that she will be harmed by a group of moneylenders upon her return to the Philippines because she would be unable to repay an outstanding debt. The Applicant, now aged 60, was born in Sagada, Mountain Province, the Philippines. She had 14 years’ of education and a bachelor of science degree. She has about 20 years’ of working experience as a foreign domestic helper in Hong Kong. She first came to work in Hong Kong in 1988. She claimed that when she returned to the Philippines for holiday in March 2007, she learned about an investment opportunity in a direct sales scheme in phone cards, known as Line Card, which she described was a sort of “pyramid selling”. She borrowed 350,000 pesos at a monthly interest rate of 10% per annum from a man known as J who represented a group of moneylenders. She was introduced to J through her friend M whom she met in Hong Kong. She knew little about J or his associates. She remembered that she only gave J her name and did not have to give him any other information (such as her addresses in the Philippines or Hong Kong) before J approved her loan. She signed on a loan agreement and J gave her the money in cash which she invested in Line Card. She could not remember when the loan was due. She returned to Hong Kong on 12 April 2007. In June or July 2007 while she was in Hong Kong, Line Card closed down. The Applicant lost all her investment. M called her and told her about the collapse of Line Card. She warned the Applicant that the moneylenders would do something bad to her if she failed to repay the loan. The Applicant therefore feared that if she returned to the Philippines, J or his associates would harm or even kill her because of the outstanding loan. But she confirmed to the Board that they had never approached her directly or indirectly through her family in the Philippines for repayment of the loan. She does not believe the Philippine police would help her, as it was a personal monetary dispute. Further, she does not believe internal relocation feasible because M told her that the moneylenders were powerful and strong and could locate her through their extensive network in the Philippines. The finding of the Board The Board found the Applicant’s claims about the loan to be “extremely vague and general”. She did not provide much information about J and was unwilling to provide information about M. Nevertheless, the Board assessed her claim on the basis of the case as she asserted. The Board noted that it was the Applicant’s evidence that she had no contact with J after taking out the loan. There was only one conversation regarding the repayment of the loan and that was with M more than ten years ago. There was no direct demand on her to repay and she never received any threat because of the outstanding loan. Put at its highest, her case rested on her subjective fear that J “might do something bad” to her upon her return. In the circumstances, the Board found that there could not possibly be any “substantial grounds” for finding that she would face a real risk of ill-treatment if refouled to the Philippines. Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found the Applicant had failed to establish the factual basis to support her claims for protection under any of the applicable grounds being considered. Hence, it dismissed her appeal against the Director’s Notice. Legal principles applicable to judicial review The role of the court in judicial review is not to re-assess the non-refoulement claims 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. Grounds for judicial review The Applicant did not advance any grounds for judicial review in the Form 86. In her supporting affirmation, she annexed a statement advancing six grounds of review. The statement is very familiar to the Court as it has seen similar statements or grounds in other applications. The statement appears to be a template statement without regard to the actual facts of the case. Hence, the grounds need elaboration. As the Applicant did not appear at the hearing, she forwent her opportunity to perfect her grounds of application. The Court could only assess her grounds without the benefit of properly particularised grounds. Ground (1) - Procedural impropriety: Failure to conduct sufficient due diligence The particulars of this ground are as follows: “Failure to properly apply paragraph 2 of the UN Committee against torture General Comment No 2 whereby satisfaction of a National states obligations to conduct sufficient due diligence requires that reforms and means of relief introduced must be effective in any event, cf, the TCAB and the Director Decision which focussed on whether such reliefs showed merely signs of positive improvement.” The Applicant did not give particulars of the reforms and means of relief mentioned. This ground appears to be directed at the Board’s finding on the basis of the country of origin information (“COI”). There was no such finding by the Board. In fact, the Board did not find it necessary to refer to any COI as the Applicant had failed to establish any substantial grounds for finding that she would face a real risk of ill-treatment on her return to the Philippines. Ground (2) - Procedural impropriety: Failure to conduct sufficient enquiry into the relevant COI The Applicant gave no particulars in respect of this ground. She did not identify the COI which she alleged the Board had failed to conduct enquiries or had made insufficient enquiries. For the same reasons as given in relation to Ground (1), there is no substance in this ground. Ground (3) - Procedural impropriety/Irrationality: Failure to give reasons for assessment of lack of BOR 3 Risks The Board did give reasons for its assessment in paragraphs 31 to 40 of the Decision as summarised in paragraphs 8 to 10 above. It assessed her claim on the basis of the case as she asserted. On her case, the Applicant had never received any threat or demand from the moneylenders or J representing them or the intermediary, M. Her claim at the highest is that M said to her that if she did not repay J ‘might do something bad’. That was the only conversation she had with M for ten years. The Board therefore found even on the basis of her case, the Applicant had failed to establish any basis to support a finding that she would face a real risk that her right to life would be violated by the moneylenders or that she would suffer severe physical or mental ill-treatment amounting to cruel, inhuman, degrading treatment or punishment, if refouled. These reasons are finding of fact and the Court considers the reasons adequate. Ground (4) - Error/Misdirection in law: The particulars of this ground are as follows: “Failing to take into account the considerations of psychological strain and threats to me personally or threats to me directly to kill me. The Applicant did not identify the misdirection complained of. It is not the Applicant’s case that she suffered ill-treatment in the form of psychological strain. The Board had adequately considered the issue of threat. There is no substance in this ground. This ground is clear evidence of blind use of template without regard to the actual facts of the case. Ground (5) – No sufficient basis to conclude that the Applicant would not be at risk of being subjected to torture and/or cruel, inhuman, degrading punishment or treatment For the same reasons as given in paragraph 18 above, there is no substance in this ground. Ground (6) – Procedural Impropriety: The Board failed to consider the BOR 2 claim For the same reasons as given in paragraph 18 above, there is no substance in this ground. Overall scrutiny Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board assessed the Applicant’s claim on the basis of the case as she asserted. These are the Board’s finding of facts which the Applicant could have no complaint. It was on the basis of these primary facts, that the Board further found she is not entitled to non-refoulement protection under any of the four applicable grounds. These are mixed finding of facts and of the law. Insofar as they are finding of fact, they are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. Insofar as they are finding and application of the law, they are absolutely correct. The Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success. Conclusion The Applicant’s application for leave to apply for judicial review is refused. Dated the 26th day of September 2024 ( Seline Y Sze ) 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 granted, the Applicant or his solicitors must: a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted(Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). Sent to the Applicant on 26/09/2024 Dewey Alice Sito 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 26/09/2024 Torture Claims Appeal Board / Non-Refoulement Claims Petition Office Putative Respondent’s ref. no.: TCAB 522/13/6/47/F178; USM 11920/18/6/99/F748 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 409/13 (formerly RBCZ 1621/09); QA T/C 1113/18 (Formerly RBCZ/2001055/14) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2) Form CALL-1