MORLA EDELYN SALES v. TORTURE CLAIMS APPEAL BOARD

HCAL 1524/2023

[2024] HKCFI 2637

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1524 OF 2023

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 / the Applicant being absent in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 37-year-old national of the Philippines who arrived in Hong Kong on 25 October 2020 with permission to work as a foreign domestic helper until the expiration of the employment contract on 25 October 2022 or within 14 days of its early termination, but when her employment was prematurely terminated on 13 March 2022, she did not depart and instead overstayed, and on 13 April 2022 she surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if she returned to the Philippines she would be harmed or killed by her mother for being an lesbian.

2.  The Applicant was born and raised in Soccoro, Oriental Mindoro, the Philippines. After leaving school she worked as a cashier, a saleslady and a factory worker in the Philippines until 2017 when she travelled to Lebanon to work as a domestic servant, and then in March 2020 she came to Hong Kong to work as a foreign domestic helper.

3.  On 28 March 2022 her employment was prematurely terminated by her employer, and later when she informed her mother of the same, and revealed that she was then living with some girlfriend in Hong Kong in a lesbian relationship, her mother became furious and threatened to kill her when she returned to the Philippines, and so she was afraid to return and therefore overstayed in Hong Kong and subsequently raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 8 July 2022 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

4.  By a Notice of Decision dated 9 August 2022 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”).

5.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no real and foreseeable risk that she will be subjected to any serious harm or ill-treatment by her mother upon her return to the Philippines due to the low intensity and frequency of past ill-treatment from her mother, that there is no evidence of any real intention of her mother to seriously harm or kill her other than just angry words uttered in a telephone conversation, that in any event it was a private dispute between her and her mother only 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 114 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 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 mother to locate her.

6.  On 18 August 2022 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 9 June 2023 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 24 August 2023, her appeal was dismissed by the Board which also confirmed the Director’s decision.

7.  In its decision the Board accepted the Applicant’s claim of fear of harm from her mother over her being a lesbian but found no reliable evidence of any real intention of her mother to seriously harm or kill her other than some angry words uttered on a telephone conversation between them, and that in any event it was a private family dispute between her and her mother only without any official involvement that state or police protection would be available to the Applicant upon her return to the Philippines as well as reasonable internal relocation alternatives for her to move safely to other parts of the country away from her home district without any risk of being located by her mother that her claim for non-refoulement protection failed on all applicable grounds.

8.  On 29 August 2023 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form, and in her supporting affirmation of the same date she appeared to have just copied from the document of another claimant with totally different facts about some powerful man as her enemy when on the factual basis of even her own case that it was her mother that she claimed to be in fear, and then she went on to make bare and vague assertions that the Adjudicator did not consider her claim properly or that she was not allow to submit documents without proper translation or that the interpreter was impatient and unhelpful during her hearing before the Board but without providing any relevant or necessary details or particulars or elaboration to corroborate her such assertions that I do not find any of them reasonably arguable for her intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, nor do I find any merits in her intended application either.

9.  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.

10.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions 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, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

11.  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.

12.  Moreover, the Applicant recently on 24 June 2024 filed an affirmation requesting to withdraw her application as her problem is already “finished” that she wanted to return to her home country, whereupon she was subsequently removed from Hong Kong.

13.  In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of her latest confirmation of no more problem returning to her home country, I accordingly dismiss her leave 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