MANUBA JANETH MACATANGAY v. TORTURE CLAIMS APPEAL BOARD

HCAL 2911/2019

[2024] HKCFI 125

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2911 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 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 40-year-old national of the Philippines who first came to Hong Kong in 2011 with permission to work as a foreign domestic helper until the expiration of her employment contract or within 14 days of its early termination, but when her last employment was prematurely terminated on 2 December 2015, she did not depart and upon her arrest by the police she raised a non-refoulement claim on the basis that if she returned to the Philippines she would be harmed or killed by her abusive husband over their domestic disputes. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Pinamalayan Oriental Mindoro, the Philippines. After leaving school she married her husband in 2003, but soon she discovered that he was a drug addict and an alcoholic frequently without job or income, and when he was drunk he would become violent and abusive towards her by slapping and beating her at will.

3.  After several such severe beatings the Applicant found herself no longer able to tolerate her husband’s abuses and decided to leave him by applying to work in Hong Kong as a foreign domestic helper, which she eventually did 2011, but during which her husband insisted that she should quit her job to return to their home in the Philippines, and when she refused, he started to make threats against her on the phone that she in 2013 changed her phone number so that he could not reach her, whereupon he started to harass her family in the Philippines and threatened to burn down their house if the Applicant refused to return to him.

4.  Henceforth when her last employment was terminated in December 2015, the Applicant was afraid to return to the Philippines and therefore raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 18 September 2018 and attended screening interview before the Immigration Department with legal representation.

5.  By a Notice of Decision dated 26 October 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 found no substantial grounds for believing that there will be any real and substantial risk of her being harmed or killed by her husband upon her return to the Philippines due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of her husband to seriously harm or kill her, that in any event it was a private domestic dispute between the 2 of them 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 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 husband to locate her.

7.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 30 July 2019 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 23 August 2019 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 abusive husband but found no evidence of any real intention of him to seriously harm or even kill her, that it is not accepted that after all these years since she left him in 2010 and came to work in Hong Kong without any further contact with him that he would still have any adverse interest in her, and that in any event any risk arising from what were essentially private domestic disputes between the 2 of them without any official involvement 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 3 October 2019 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 or in her supporting affirmation of the same date in which she just stated that she rejects the decision as it disregarded her dangerous situation but without providing any details or particulars or elaboration as to how it did so. As such 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, I do not find any reasonably arguable basis for her intended challenge.

10.  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.

11.  In the Applicant’s case, the fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s 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.

12.  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.

13.  Moreover, the Applicant recently on 29 November 2023 filed an affirmation requesting to withdraw her application as her problem in her home country has been resolved that she now wants to return to the Philippines.

14.  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