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Barroga Escolastica Tejero v Torture Claims Appeal Board

Judgment Cited authorities 18 Cited in 1 Precedent Map Related
Vincent
Judgment Date15 December 2020
Neutral Citation[2020] HKCA 1020
Year2020
Judgement NumberCACV193/2020
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV193/2020 BARROGA ESCOLASTICA TEJERO v. TORTURE CLAIMS APPEAL BOARD

CACV 193/2020

[2020] HKCA 1020

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 193 OF 2020

(ON APPEAL FROM HCAL NO 1540 OF 2018)

________________________

BETWEEN

BARROGA ESCOLASTICA TEJERO Applicant
and
TORTURE CLAIMS APPEAL BOARD Putative Respondent
DIRECTOR OF IMMIGRATION Putative Interested Party

________________________

Before: Hon Lam VP and G Lam J in Court

Date of Hearing: 9 December 2020

Date of Judgment: 15 December 2020

________________________

J U D G M E N T

________________________


Hon G Lam J (giving Judgment of the Court):

Introduction

1. This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) on 8 June 2020 refusing leave for the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/Adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 27 July 2018. In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 13 July 2017 rejecting the applicant’s non-refoulement claim.

Background

2. The applicant is a national of the Philippines. She last arrived in Hong Kong in October 2008 to work as a domestic helper and was employed as such until 12 December 2009 when her contract was terminated before its expiry. Her conditions of stay permitted her to remain in Hong Kong until 2 weeks after termination of her contract. She did not, however, depart from Hong Kong and has overstayed since 27 December 2009.

3. On 6 July 2013 the applicant was arrested by the police for overstaying, for which she was convicted and sentenced to 12 weeks’ imprisonment. Upon release she was transferred to the Immigration Department, and subsequently lodged a non-refoulement claim.

4. The applicant’s claim was based on the fear that, if she returned to the Philippines, she would be harmed or even killed by her creditor Rogelio Marasigan, as she had stopped repaying her outstanding debt and as he was apparently connected to the New People’s Army. The factual background was summarized by the Judge in [2]-[4] of the Form CALL-1 ([2020] HKCFI 1047).

5. By notices of decision dated 8 May 2015 and 13 July 2017, the Director assessed the applicant’s claim on all applicable grounds and determined it against the applicant. The former covered BOR 3 risk,[1] persecution risk,[2] and torture risk,[3] and the latter covered BOR 2 risk.[4]

6. The applicant appealed to the Board against the Director’s decision of 8 May 2015. An oral hearing was held on 16 August 2016, during which the applicant was interviewed by the Board.

7. The Board found that there was no real risk of harm in the event of refoulement, because the applicant was never directly threatened in relation to her debt, her mother who received the threats had never been assaulted, and the matter involved a private loan. The Board further considered that any risk of harm was of a localized nature and thus internal relocation was viable. Accordingly, the Board dismissed the applicant’s appeal on 23 February 2017 in relation to persecution risk, BOR 3 risk, and torture risk.

8. Subsequently the applicant also appealed to the Board against the Director’s decision of 13 July 2017 on BOR 2 risk. The Board decided that it was unnecessary to hold an oral hearing in relation to the applicant’s claim under BOR 2 risk, because there were no new materials or facts to consider, and there was nothing that seemed to warrant an oral hearing. Based on its factual findings in its decision of 23 February 2017, the Board concluded that there was no BOR 2 risk in the event of refoulement, and dismissed the applicant’s appeal on 27 July 2018.

Decision of the court below

9. On 3 August 2018, the applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision of 27 July 2018 and the Director’s decision of 8 May 2015.[5] In her affirmation in support of her Form 86, she raised the following relevant grounds for seeking relief, as set out at [12] of the Judge’s decision:

“ 12. On 3 August 2018 the Applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in her supporting affirmation of the same date she put forward the following grounds for her intended challenge:

(1) that she was not provided with legal representation for her BOR 2 risk before the Director or for her appeal before the Board;

(2) that she was not given language assistance in her appeal to the Board;

(3) that it was not fair to reject her BOR 2 risk when she was not aware of the invitation letter for her to submit additional facts for BOR 2 risk;

(4) that it was not fair to dismiss her appeal without any oral hearing before the Board; and

(5) that the Board failed to elaborate on its findings as to her grounds of appeal in dismissing her appeal.”

10. Following a hearing on 10 December 2019 at which the applicant attended in person before the Judge, on 8 June 2020 the Judge refused to grant leave to apply for judicial review. The reasons for the refusal were set out at [13]-[21] of the Form CALL-1 ([2020] HKCFI 1047) as follows:

“ 13. For her complaint in Ground (1) of not being provided legal representation in her appeal before the Board, the Court of Appeal has already held that neither the high standards of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14,Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

14. The Applicant already had the benefit of legal representation in presenting her case to the Director, and was able to testify and make representation in her appeal hearing before the Board and to answer questions put to her by the adjudicator without difficulty. In the premises I do not find anything amiss arising from the lack of legal representation in her appeal process, and I do not think this ground is reasonably arguable.

15. As for her complaint under Ground (2) of not being provided with language assistance for translating documents in her appeal to the Board, it is clear that having worked and lived in Hong Kong for years that she would be able to read and speak English, while many of the documents such as her NCF was completed on her instructions to her legal representation from DLS, and that she was also assisted by an interpreter at her appeal hearing before the Board during which she never raised any issue with translation. In the absence of any particulars or specifics to demonstrate that the basis of her claim has indeed been wrongly...

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1 cases
  • Barroga Escolastica Tejero v Torture Claims Appeal Board
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 10 March 2021
    ...Motion to apply for leave to appeal to the Court of Final Appeal against this Court’s judgment of 15 December 2020 (Lam VP and G Lam J): [2020] HKCA 1020. In that judgment this Court dismissed the Applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan on 8 June 2020 d......

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