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Re Aquino Esminia Ramento

Judgment Cited authorities 16 Cited in Precedent Map Related
Vincent
Judgment Date29 March 2021
Neutral Citation[2021] HKCA 417
Year2021
Judgement NumberCACV282/2020
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV282/2020 RE AQUINO ESMINIA RAMENTO

CACV 282/2020

[2021] HKCA 417

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 282 OF 2020

(ON APPEAL FROM HCAL 402/2018)

________________________

RE: AQUINO ESMINIA RAMENTO Applicant

________________________

Before: Hon Lam VP, Yau and S T Poon JJ in Court

Date of Hearing: 22 March 2021

Date of Judgment: 29 March 2021

________________________

J U D G M E N T

________________________


Hon Yau J (giving the Judgment of the Court):

Introduction

1. On 6 July 2020, Deputy High Court Judge Bruno Chan (“the Judge”) refused to grant leave to 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 28 February 2018. In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 31 May 2017 rejecting the applicant’s non-refoulement claim.

2. On 22 July 2020, the applicant filed a Notice of Appeal against the Judge’s decision.

Background

3. The applicant is a Philippine national. She arrived in Hong Kong in 2001 and was employed as a foreign domestic helper until 27 October 2015 when she completed her last contract. She did not depart and overstayed. She surrendered to the Immigration Department on 23 November 2015 and lodged her non-refoulement claim on 11 May 2016.

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 husband who had accused her of having a boyfriend in Hong Kong. The factual background was succinctly summarized by the Judge at [2] – [3] of the Form CALL-1 ([2020] HKCFI 793).

5. The applicable grounds of the applicant’s claim are BOR 3 risk[1], persecution risk[2], torture risk[3], and BOR 2 risk[4]. The Director assessed all these grounds, and by notice of decision dated 31 May 2017 refused her application.

6. The applicant appealed to the Board against the Director’s decision. A hearing was held on 23 February 2018, during which the applicant was interviewed by the Board. At the hearing, the Board confirmed with the applicant that her husband had only made one verbal threat to her over the telephone on 26 October 2015, that there was no significant history of violence by him, that he had left home, that neither she nor her family had heard from him since, and that his whereabouts were unknown.

7. On the strength of those facts, the Board concluded that there was no real risk of harm to the applicant in the event of refoulement. The Board dismissed the applicant’s appeal on all the applicable grounds on 28 February 2018.

Decision of the court below

8. On 12 March 2018, the applicant sought leave from the court to apply for judicial review against the Board’s decision. In her affirmation of the same date filed in support, she set out her grounds for relief which were summarized by the Judge at [8] of his judgment in the Form CALL-1.

9. Upon consideration of the documents only, the Judge on 6 July 2020 refused to grant leave to apply for judicial review. The grounds of relief of the applicant as well as the Judge’s reasons for the refusal were set out at [8] – [17] of the Form CALL-1 as follows:

“8. On 12 March 2018 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her supporting affidavit of the same date she put forward the following grounds as summarized for her intended challenge:

(1) that the adjudicator failed to meet the high standards of procedural fairness required of the tribunal in failing to provide representation for the Applicant at her oral hearing before the Board;

(2) that the adjudicator failed to apply high standards of fairness by taking account of irrelevant considerations in assessing the Applicant’s claim rendering a refusal decision;

(3) that the adjudicator gave no proper reasons for his decision after citing only the history of the matter and the materials available before him;

(4) that the adjudicator failed to take account of all the COI material in the hearing bundle in his determination of the Applicant’s claim; and

(5) that the adjudicator did a shoddy job, was intentionally rude and inconsiderate, and failed miserably.

9. These are however just broad and vague assertions of the Applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to her case or how the Board or the adjudicator had erred in the decision, or in what way did the adjudicator fail to apply high standards of fairness in his assessment of her claim, or how did the adjudicator fail to take into account relevant COI in his determination of her claim or being intentional rude and inconsiderate towards her at her hearing before the Board. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant.

10. As for her complaint of not being provided with legal representation for 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: see 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.

11. The Applicant already had the benefit of legal representation in presenting her case to the Director, and was able to give evidence and answer to questions raised of her claim from the adjudicator during her oral hearing before the Board without any difficulty or problem. Given the straightforward facts and nature of her claim, and in the absence of any evidence to suggest that her case had been misunderstood or misjudged by the adjudicator, I do not find this ground reasonably arguable for her intended challenge.

12. Regarding her complaint of the adjudicator’s failure to give proper reason for his decision other than just citing the history of her case and the materials before the Board, it is plainly incorrect for the Applicant to so claim, as the adjudicator did clearly in...

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