CARBONEL MARIA DELIA MERA alias CARBONEL, MA. DELIA MERA alias CARBONEL, MARIA DELIA alias CARBONEL, MARIA DELIA M. alias MERA, MARIA DELIA v. TORTURE CLAIMS APPEAL BOARD

HCAL 1018/2019

[2024] HKCFI 1478

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1018 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;

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 49-year-old national of the Philippines who last arrived in Hong Kong on 24 June 2011 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 24 June 2013 or within 14 days of its early termination, but when her employment was prematurely terminated on 19 September 2011, she did not depart and instead overstayed, and was arrested by police on 23 March 2012. After she was referred to the Immigration Department for investigation, she raised a torture claim on the basis that if she returned to the Philippines she would be harmed or killed by her former boyfriend over their personal disputes, and after her torture claim was rejected, she then sought non-refoulement protection on the same basis. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Bukidnon, Quezon, Misamis Oriental, the Philippines. After leaving school she worked as a hawker in her home district to make her living.

3.  In 1991 she started cohabiting with her boyfriend in her parents’ home and raised a family with 2 children, but later their relationship deteriorated when her boyfriend became abusive towards her, the Applicant made arrangements to leave him by coming to Hong Kong to work as a foreign domestic helper, which she did on 26 March 2009, returning to the Philippines only for holidays.

4.  In 2010 she started a new relationship with another man in Hong Kong, and when her boyfriend in the Philippines heard about it, he threatened on the phone to kill her upon her return to the Philippines.

5.  The Applicant therefore decided to put end to their relationship and secretly arranged for her children to be placed in the care of her sister in Manila in 2011, and later when it was discovered by her former boyfriend, he again made threatening phone calls to her the Applicant whereupon she then cut off all further contacts with him.

6.  However, when her last employment contract was prematurely terminated in late 2011, the Applicant was afraid to return to the Philippines and therefore overstayed in Hong Kong, and upon her subsequent arrest by the police, she raised her torture claim, and after it was rejected she then sought non-refoulement claim for protection, for which she completed a Supplementary Claim Form (“SCF”) on 23 July 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.  By a Notice of Decision dated 27 August 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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”).

8.  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 and that it is not accepted that he would still have any adverse interest in her after all these years since their last contact in 2012, 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 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 former boyfriend to locate her.

9.  On 4 September 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 January 2019 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 21 March 2019 her appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of her claim of fear of harm from her former boyfriend that caused her to overstay in Hong Kong to seek protection, that in any event even if her claimed account of events were true that there was no reliable evidence of any real intention of her former boyfriend to seriously harm or kill her over their private disputes 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 that her claim for non-refoulement protection failed on all applicable grounds.

11.  On 15 April 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her Form and supporting affirmation she put forward the following grounds for her intended challenge, of which she confirmed at the hearing as follows:

(1)  That the Board was in breach of procedural fairness in that it had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirements;

(2)  That the Board was in breach of procedural fairness in that the Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(3)  That the Board was in breach of procedural fairness in that its decision to refuse the Applicant’s appeal was unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(4)  That the Board was in breach of procedural fairness in failing to meet the greater care and duty owed to a self-represented claimant;

(5)  That the Board had significantly relied on source of news not officially recognized or were simply hearsay or outdated with the lack of credible source of information resulted in groundless speculations that it is safe for the Applicant to return to her home country;

(6)  That the Adjudicator reached the wrong decision in assessing the Applicant’s claim without any proper inquiry and without carefully understanding her situation; and

(7)  That it was procedural unfair that the hearing bundle was given to the Applicant just a few days before her appeal hearing before the Board with the majority of the documents in English thereby giving her insufficient time to prepare for the hearing due to her limited skills in English and being unrepresented.

12.  These are however all just bare and vague assertions of the Applicant containing a few key words or phrases but without any necessary or relevant particulars or specifics or elaborations as to how they apply to her case or how the Board or the Adjudicator had erred in the decision, or in what way did the Board unlawfully fetter its discretion or that the decision was unfair or unreasonable or that the Board or the Adjudicator had acted procedurally unfair or irrational, or what source of news relied on by the Board were not officially recognized or were hearsay or outdated, how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for her intended challenge.

13.  As for her last complaint of being given the hearing bundle just a few days before her appeal hearing before the Board thereby giving her insufficient time to prepare for her appeal due to her limited skills in English and was legally unrepresented, the Applicant never produced any documentary evidence such as the covering letter for her hearing bundle in support of her bare assertion, but even if the hearing bundle was indeed provided to her shortly before her appeal hearing, the fact is that she was already familiar with the majority of the documents such as her own NCF or the record of her screening interview which had all been provided to her earlier in her process before the Director and when she was legally represented by DLS, and that she never raised any such issue to the Board during her appeal hearing when she was able to properly make her representations and submissions without problem and with the assistance of an interpreter. As such I do not find anything amiss arising with the provision of the hearing bundle to the Applicant for her appeal to the Board, nor do I find this ground reasonably arguable for her intended challenge either.

14.  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.

15.  In the Applicant’s case, the fact is that it has been correctly 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.

16.  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.

17.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss her 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