ESTRADA MICHELLE DE LA ROCA v. KEVIN ANTHONY BROWNE, ESQ., TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 546/2018

[2019] HKCFI 2472

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 546 of 2018

 Application for Leave to Apply for Judicial Review

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

Following:

The application for leave to apply for judicial review be struck out and dismissed.

Observations for the Applicant:

1.  The Applicant is a 34-year-old national of the Philippines who last arrived in Hong Kong on 13 June 2012 as a visitor with permission to remain up to 27 June 2012 when she did not depart and instead overstayed until 15 May 2014 when she surrendered to the police.  After she was referred to the Immigration Department for investigation, 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.  She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Ilijan, Batangas City, the Philippines.  After leaving school she worked in the factory and in 2006 married her husband and moved into his home in Tago, Surigao del Sur.

3.  In about 2008 her relationship with her husband deteriorated after she became suspicious that he was having an extra-marital affair, and over which they frequently had heated argument during which her husband would often become violent and abusive by slapping punching and kicking her.

4.  Eventually the Applicant found it intolerable to live with her husband, and when he was away on a business trip to Singapore in June 2012, she left their matrimonial home in Surigao del Sur and returned to her parents in Batangas City, and when her husband demanded that she returned to him or else he would kill her, she became fearful for her life and so on 13 June 2012 she departed for Hong Kong where she overstayed and subsequently raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form on 10 April 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.  By a Notice of Decision dated 15 June 2015 the Director of Immigration (“the Director”) rejected the Applicant’s 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 (“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 all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her husband to the Applicant 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 reliable evidence to suggest any real intention on his part to harm or kill her, that in any event it was a domestic dispute 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 107 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 work experience to move to other part of the Philippines away from her home district or her husband’s home district to large cities such as Manila where it would be difficult if not impossible for her husband to locate her.

7.  By a Notice of Further Decision dated 24 November 2016 the Director again rejected the Applicant’s claim in the absence of any response from her to an earlier invitation to submit additional facts which may be relevant to her non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

8.  By then the Applicant was 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 25 June 2015, and for which she attended an oral hearing on 29 November 2016 before the Board during which she confirmed her evidence in the hearing bundle as correct with nothing further to add but did answer questions put to her by the adjudicator for the Board.  On 21 April 2017 her appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.  On 8 June 2017 the Applicant filed her Form 86 under HCAL 278/2017 for leave to apply for judicial review of the Board’s decision, and in her supporting affirmation of the same date she put forward the following grounds for her intended challenge:

 (1) procedural impropriety/unfairness in the adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of his claim;

 (2) irrationality in the adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of his claim;

 (3) irrationality in the adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in the Philippines;

 (4) irrationality in the adjudicator’s failure to analyze and assess whether state protection exists in the Philippines and misdirected himself as to the extended meaning of state protection;

 (5) irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

 (6) procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the Applicant;

 (7) procedural impropriety/unfairness in the adjudicator applying the incorrect standard of proof in his decision; and

 (8) procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the Applicant resulting in unfair procedure.  

10.  On 13 March 2018 after hearing the Applicant appearing in person Deputy High Court Judge Woodcock refused her application upon finding none of her grounds reasonably arguable for her intended challenge, that there was no error of law or procedural unfairness in her process before the Board or in its decision, and that there was no prospect of success in her intended application.

11.  The Applicant did not appeal against that decision, and instead on 3 April 2018 she filed another Form 86 for leave to apply for judicial review again of the Board’s decision, and put forward essentially the same grounds as before for her intended application.

12.  Clearly the principle of res judicata applies, and that it is an abuse of process for the Applicant to re-litigate her case by bringing a second judicial review in respect of the same decision of the Board after she failed to obtain leave from the Court under HCAL 278/2017 against which she has never appealed, and also for failing to inform the Registry of the same when she filed her second Form 86 and issued her ex parte application in these proceedings, resulting in much judicial and public resources being wasted in processing these proceedings.

13.  In the premises and for these reasons, this second application of the Applicant for judicial review of the Board’s decision is hereby struck out and dismissed.

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