OTAD JENNY BERGONIO AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 626/2018

[2020] HKCFI 2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 626 of 2018

     Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The 1^st Applicant (“A1”) is a 39-year-old national of the Philippines who last arrived in Hong Kong on 23 August 2014 with permission to work as a foreign domestic helper until the expiration of her employment contract on 27 July 2015 when she did not depart and instead overstayed in Hong Kong, and on 9 September 2015 she surrendered to the Immigration Department and raised a non-refoulement claim jointly for herself and her daughter, the 2^nd Applicant (“A2”) whom she gave birth on 11 May 2015 in Hong Kong, on the basis that if they returned to the Philippines they would be harmed or killed by A1’s abusive husband in that A1 had given birth to A2 out of her extramarital relationship with another man in Hong Kong.  They were subsequently released on recognizance pending the determination of their claim.

2.  A1 was born and raised in Brgy, Malamig, Mandaluyong City, Manila, the Philippines.  After leaving school she worked as a saleslady in Manila, married her husband in 2000, and moved to live with him in Purak Nurserym Patulangon, Makilala where they raised a family of four children.

3.  However, over the course of their marriage her husband indulged in alcohol and illegal drugs, and when drunk he would become abusive towards A1 by slapping and punching her causing her fear, pain and injuries.

4.  In July 2012 A1 decided to leave her husband by moving back to live with her parents in Mandaluyong City, and in August 2012 she came to Hong Kong to work as a foreign domestic helper, and later when her husband started to cohabit with another woman, her parents in March 2014 reached an agreement with him for them to look after their children while A1 was working in Hong Kong.      

5.  In late 2014 A1 started a relationship with another man in Hong Kong with whom she later gave birth to A2 on 11 May 2015, but after her last employment contract expired on 27 July 2015, she did not depart for the Philippines as her husband had found out about her extramarital relationship and had threatened to kill her and A2 if they returned to the Philippines, and so A1 overstayed in Hong Kong and later raised her non-refoulement claim for protection for herself and A2, for which she completed a Non-refoulement Claim Form on 24 May 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.  

6.  By a Notice of Decision dated 15 July 2016 the Director of Immigration (“the Director”) rejected the Applicants’ claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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”).

7.  In his decision the Director took into account of all the relevant circumstances of the Applicants’ claim and assessed the level of risk of harm from A1’s husband upon their return to the Philippines as low due to the low intensity and frequency of past ill-treatment from him, that there was no reliable evidence of any real intention on the part of A1’s husband to harm or kill them upon their return to the Philippines, that in any event it was a domestic abuse between A1 and her husband without any official involvement that state or police protection would be available to the Applicants if resorted to, and that reliable and objective Country of Origin Information show that reasonable internal relocation alternatives are available in the Philippines with a large population of 100 million people spread across a vast territory of more than 300,000 square kilometers that it would not be unduly harsh for A1 as an able-bodied adult with working experience to move safely with A2 to other part of the Philippines away from her home district in large cities such as Manila where it would be difficult if not impossible for her husband to locate them.

8.  By a Notice of Further Decision dated 20 October 2017 the Director again rejected the Applicants’ claim upon receiving and considering additional facts submitted by them relevant to their non-refoulement claim for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

9.  By then the Applicants were already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 28 July 2016, and for which they attended an oral hearing on 14 November 2017 before the Board during which A1 gave evidence and answered questions put to her by the adjudicator for the Board.  On 16 March 2018 their appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.  In its decision the Board accepted A1’s claim of having been abused by her husband during their marriage in the Philippines but found no reliable evidence of any real intention on the part of her husband to harm or kill her or A2 years after their separation when he was already living with another woman, and that in any event with state or police protection would be available to the Applicants if needed as well as reasonable relocation within the Philippines for the Applicants to move safely to other part away from her home district without any risk of being located by A1’s husband that their claim for non-refoulement protection in Hong Kong failed on all applicable grounds.      

11.  On 12 April 2018 the Applicants filed their 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 their Form, and in A1’s supporting affidavit of the same date she merely stated that she wants to review those decisions as the Director and the Board disregarded her dangerous situation in her home country but without providing any particulars or elaborations as to how they failed to do so or to put forward any other proper or valid ground for their intended application.  Nor did they request any oral hearing for their application.  As such and in the premises I do not find any reasonably arguable basis for their intended challenge.

12.  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.  

13.  In the Applicants’ 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 their claim is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of the Philippines, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

14.  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 Applicants’ claim.

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