TACTAY DANITAS TUBOG v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 1733/2019

[2021] HKCFI 1579

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1733 of 2019

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;

1.  the application for leave to apply for Judicial Review be reinstated; and

2.  leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 45-year-old national of the Philippines who last arrived in Hong Kong on 27 November 2011 with permission to work as a foreign domestic helper until the expiration of her employment contract on 27 November 2013 when she did not depart and instead overstayed until 17 June 2016 when she surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if she returned to the Philippines she would be harmed or killed by her husband and/or his creditor for failing to repay his loan borrowed on her behalf. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Lagatit, Santo Domingo, Ilocos Sur, the Philippines. After leaving school she worked in her home district, married her husband, and in 1997 started to work in Hong Kong as a foreign domestic helper.

3.  In 2010 she met a man in Hong Kong who told her that for an agency fee of HK$60,000 he could arrange for her to work in the United Kingdom for higher wages, and so she asked her husband to borrow the money in the Philippines by pledging his property for the loan, for which she would repay him with monthly remittances after she got her job in the United Kingdom.

4.  However, after receiving her money the man in Hong Kong disappeared without a trace, and when the Applicant was unable to find further employment after completing her last one in November 2013, and when she was unable to make any further remittance to her husband who was then unable to repay the loan to his creditor, and as a result his property was seized by the creditor who then pressed him for the balance of the loan, and in turn her husband blamed the Applicant for the loss of his property and threatened to kill her upon her return to the Philippines, and so she became afraid to leave Hong Kong to return to the Philippines, and subsequently raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 15 January 2018 and attended a screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).  

5.  By a Notice of Decision dated 21 February 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 all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her husband or his creditor upon her return to the Philippines as low due to the absence of or low intensity and frequency of past ill-treatment from them, that her problems with them were private domestic or monetary disputes 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”) shows 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 working experience to move to other parts of the Philippines away from her home district in large cities such as Quezon City or Manila where it would be difficult if not impossible for her husband or his creditor to locate her.

7.  On 2 March 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 21 February 2019 before the Board during which she gave evidence and answered questions put to her by the Adjudicator for the Board. On 18 June 2019 her appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board found the Applicant’s claim of fear of harm from her husband and his creditor over the loan doubtful, but that in any event it was a private monetary dispute without any official involvement that state/police protection would be available to the Applicant upon her return to the Philippines as well as reasonable internal relocation for her to safely move to other areas away from her home district without any risk of being located by her husband or his creditor that her claim for non-refoulement protection failed on all applicable grounds.   

9.  On 24 June 2019 the Applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in her Form, and in her supporting affidavit of the same date she merely stated that the decisions disregarded her dangerous situation in her home country but without providing any particulars or elaboration of how they did so, nor did she put forward any other proper ground for her intended challenge.

10.  Before her application could be dealt with by the court, the Applicant on 2 July 2020 filed an affidavit requesting to withdraw her leave application as she wanted to go back to her home country due to “medical condition”, and on 23 July 2020 her request was granted and her application was taken as withdrawn.

11.  However, on 11 March 2021 she filed another affirmation requesting to be allowed to proceed with her application as her problem still has not been solved and she therefore cannot return to her home country.  

12.  Given the fact that the merits of her application has never been dealt with, and in order to save time and costs, I propose to allow her to proceed with her application and to consider the merits of her intended challenge, but as noted above the Applicant has not put forth any proper ground for seeking relief, nor did she appear at the subsequent hearing of her application without any explanation. As such and in the absence of any error of law or irrationality or procedural unfairness in her process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for the intended challenge.

13.  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.

14.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in her claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other parts 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.  

15.  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.

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