CHALINAT ANALYN PINAY-AN v. TORTURE CLAIMS APPEAL BOARD

HCAL 2273/2018

[2023] HKCFI 3107

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2273 OF 2018

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 oral submissions by the Applicant in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 33-year-old national of the Philippines who last arrived in Hong Kong on 23 January 2016 with permission to work as a foreign domestic helper but was arrested on 18 January 2018 for making false representation to an immigration officer for which she was subsequently convicted and sentenced to prison for 4 months, during which she raised a non-refoulement claim on the basis that if she returned to the Philippines she would be harmed or killed by her elder brother over their family dispute.

2.  The Applicant was born and raised in Mayoyao, Ifugao, the Philippines where she graduated from university with a degree of hotel and restaurant management. While still in college she learnt about her elder brother having an affair with another woman despite having already been married with 2 children, of which she subsequently told his wife who then left her brother and their marriage.

3.  As a result her brother was always angry and lost his temper with the Applicant and other siblings, but later in 2013 when he found out that it was the Applicant who revealed his affair to his wife that caused the breakdown of their marriage, he became furious and swore to kill the Applicant by attacking her with a chopper but was stopped by their father that the Applicant managed to make her escape.

4.  After the attack the Applicant became fearful for her life, and in order to avoid her brother’s threats, she therefore applied to work in Hong Kong as a foreign domestic helper, which she eventually did in December 2013 when she first came to Hong Kong to start her first employment contract, but later in 2018 when she was arrested for making a false representation to an immigration officer, she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 2 June 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 20 June 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

6.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her brother upon her return to the Philippines as low due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of her brother to seriously harm or kill her over their dispute, that in any event it was a private personal dispute between the 2 of them within the family without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in the Philippines with a large population of 104 million people spread across a vast territory of more than 300,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with an university degree and working experience to move to other areas of the country away from her home district in large cities such as Manila where it would be difficult if not impossible for her brother to locate her.

7.  On 3 July 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 24 September 2018 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 10 October 2018 her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision the Board accepted the Applicant’s claim of fear of harm from her brother over their personal dispute but found in the absence of any official involvement in their private family dispute that state or police protection would be available to the Applicant upon her return to the Philippines that her claim for non-refoulement protection failed on all applicable grounds.

9.  On 19 October 2018 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for her intended challenge:

(1)   That the Board reached the decision wrongly in assessing the Applicant’s non-refoulement claim in that the decision was not fair or reasonable as required by the Wednesbury test in failing to recognize that her life must be protected by criminal law from extra-judicial killings that she may face if deported back to her home country;

(2)   That the Adjudicator failed to give her sufficient time or opportunity to arrange relevant evidence for her non-refoulement claim as well as her appeal;

(3)  That the Board failed to appreciate or give proper weight and importance to the presence of State Acquiescence in the Applicant’s case that led to an unfair outcome of rejecting her non-refoulement claim;

(4)  That the Board failed to take into account the fact that the Applicant was tortured at the behest of the state law enforcement agencies and politicians that the state should be rendered liable to the Applicant by cause of the state and its public officials failure to provide reasonable protection for its citizens under the law of due diligence;

(5)  That the Board had listed relevant COI which supported the Applicant’s aversions that the police in her country would not be able to protect but failed to consider or give sufficient weight to such evidence and instead ruled otherwise against the Applicant which was a clear case of unfair attitude shown by the Board which in itself is enough to render its decision void; and

(6)  That the Board failed to take into account the Applicant’s argument that corruption and incompetency of the administration in the Applicant’s home country is still a very serious problem as reported by various human rights organizations which stated testament to the Applicant’s assertions which was a failure on the part of the Board to attain high standards of fairness as required by the Wednesbury test and as such the decision should be considered unreasonable in the scope of public law.

10.  These are however all just some vague and bare assertions of the Applicant containing a few key words or phrases but without any relevant or necessary particulars or specifics or elaborations as to how they apply to her case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or failed to give her sufficient time or opportunity to present her relevant evidence for her claim or appeal, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy were state acquiescence or extra-judicial killings or torture by state law enforcement agencies or politicians to her case which on the factual basis of even her own case was a private family dispute between her and her brother without any state or official involvement at all. As such and as none of these assertions were elaborated or presented with any particulars or specifics by the Applicant, I do not find any of them reasonably arguable for her intended challenge.

11.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

12.  In the Applicant’s case, the fact is that it has been correctly established by the Director in his decision that the risk of harm in her claim if real is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of the Philippines, a decision also confirmed by the Board, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

13.  In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

14.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and accordingly I refuse to grant leave and dismiss her application.

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