BERNARDINO MARIBETH GARCIA v. TORTURE CLAIMS APPEAL BOARD

HCAL 609/2019

[2024] HKCFI 1294

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 609 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 refused.

Observations for the Applicant:

1.  The Applicant is a 53-year-old national of the Philippines who arrived in Hong Kong on 17 July 2007 as a visitor with permission to remain as such up to 31 July 2007 when she did not depart and instead overstayed, and was arrested by police more than 2 years later on 13 October 2009 for which she was subsequently convicted and sent to prison for 2 months, and upon her discharge from prison and was referred to the Immigration Department for deportation, she raised a torture claim on the basis that if she returned to the Philippines she would be harmed or killed by a thief for having reported him to the police for shoplifting, 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 Isabela, the Philippines. After leaving school she worked as a security guard in a department store in Manila to make her living.

3.  One day in early 2007 while working in the store, she saw a man trying to steal a carton of milk by putting it in his backpack without paying for it, and so she together with her colleague got hold of the thief and took him to their office to demand him to pay for the milk or else they would call the police, which then led to a heated argument between them during which the thief threatened to kill the Applicant, and so she called the police who then came to arrest the thief.

4.  Later the Applicant heard that the thief had subsequently been convicted for theft and sent to prison, whereupon she became concerned for her safety as she feared that the thief would thereafter take revenge against her, and so she resigned from her security job and left Manila to return to her home in Isabela.

5.  As she was unable to find any work in her home town, she later returned to Manila to look for jobs, and when she was also unable to find any, and as she still feared of the thief taking revenge against her, she decided to leave the country and subsequently departed the Philippines on 17 July 2007 for Hong Kong where she overstayed, and upon her arrest and conviction and was to be deported, she raised her torture claim to the Immigration Department, and after it was rejected she then sought non-refoulement protection, for which she completed a Supplementary Claim Form (“SCF”) on 1 August 2018 and attended screening interview before an immigration officer with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 31 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”).

7.  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 the thief upon her return to the Philippines as low due to the absence of any past ill-treatment from the thief, that there is no evidence of any real intention of the thief to seriously harm or kill her or to take revenge against her other than her own speculations, that in any event in the absence of 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 Davao or Cebu where it would be difficult if not impossible for anyone to locate her.

8.  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 20 December 2018 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 1 March 2019 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board found no substantial grounds for believing that there is any risk that the Applicant will face any harm from a shoplifter whom she apprehended many years ago and who did not even know her identity or whereabouts let alone the ability to locate her in her home town or anywhere else in the country that it rejected her claim that she would be at any such risk upon her return to the Philippines and concluded that her claim for non-refoulement protection failed on all the applicable grounds.

10.  On 4 March 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 her supporting affirmation of the same date in which she just stated that she rejects the decision as it disregarded her dangerous situation in her home country but without putting forth any proper ground for her intended challenge, nor was she able to do so at the hearing of 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 of the Board’s decision.

11.  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.

12.  In the Applicant’s case, the Board rejected her claim for the thorough and detailed analysis and reasoning set out in paragraphs 17 – 29 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, and in the absence of any error of law 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 to challenge the finding of the Board.

13.  Furthermore, 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.

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 Applicant’s claim.

15.  For all 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