VILLANUEVA ARLEEN AGELION v. TORTURE CLAIMS APPEAL BOARD

HCAL 1458/2021

[2023] HKCFI 2710

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1458 OF 2021

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 last arrived in Hong Kong on 28 January 2020 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 18 December 2020 or within 14 days of its early termination, but when it was prematurely terminated on 16 December 2020, she did not depart and instead overstayed, and on 16 February 2021 she was arrested for making a false statement 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 former boyfriend for terminating their relationship. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Tabon-Tabon, Baco, Oriental, Mindoro, the Philippines. After leaving school she worked in various jobs, got married and raised a family with 2 children in her home district.

3.  After the passing of her husband, the Applicant in 2011 went to Bahrain to work as a domestic servant before coming to Hong Kong in 2014 to work as a foreign domestic helper.

4.  In 2018 during her holiday in her home district in the Philippines, she met and formed a relationship with her former boyfriend before returning to Hong Kong to continue with her employment, and maintained their relationship by phone and meeting during holidays.

5.  In 2019 she was warned by her brother that her boyfriend was an illegal drugs user and had connections with the local gangsters, and when she confronted her boyfriend on the phone, he was furious and accused her brother of telling lies about him, and told her not to trust her brother.

6.  Later the Applicant was told that her brother had been assaulted by her boyfriend, and as a result she decided to end their relationship and stopped any contact with her boyfriend, however when she visited her family in the Philippines in January 2020, her boyfriend came to confront her over their relationship, and when the Applicant told him of her decision to end their relationship, he became furious and slapped her, and threatened to kill her if she dared to leave him.

7.  After the incident, the Applicant became fearful for her life and fled back to Hong Kong to continue with her employment, but after her last employment was terminated, she was afraid to return to the Philippines and so she overstayed in Hong Kong, and subsequently raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 18 May 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

8.  By a Notice of Decision dated 3 June 2021 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”).

9.  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 former boyfriend 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 former boyfriend to seriously harm or kill her, that in any event it was a private relationship 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 109 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 former boyfriend to locate her.

10.  On 17 June 2021 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 7 September 2021 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 21 September 2021 her appeal was dismissed by the Board which also confirmed the Director’s decision.

11.  In its decision the Board accepted the Applicant’s claim of fear of harm from her former boyfriend over their relationship dispute but found no evidence of any real intention of her former boyfriend to seriously harm or kill her, and that in any event it was a private matter 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 as well as reasonable internal relocation for her to move safely to other part of the country away from her home district without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.

12.  On 20 October 2021 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, nor did she request any oral hearing for her application. 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.

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 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.

15.  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.  Moreover, the Applicant recently wrote to the Court to request to “close” her case as she has been informed by her family that it is now safe for her to return to her home country.

17.  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 that it is now safe for her to return 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