EDRADAN JEANICE SARCO v. THE DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 1379/2018

[2020] HKCFI 1043

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 1379 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 Applicant is a 39-year-old national of the Philippines who last arrived in Hong Kong on 18 August 2015 with permission to work as a foreign domestic helper until the expiration of her employment contract on 18 August 2017 or within 14 days of its early termination.  However, when her contract was prematurely terminated on 11 February 2016, she did not depart and instead overstayed and later surrendered to the Immigration Departmenton 8 March 2016 and raised a non-refoulement claim on the basis that if she returned to thePhilippines she would be harmed or killed by her boyfriend’s wife over their personal disputes.  She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Surigao City, the Philippines. After leaving school she worked as a foreign domestic helper in various places and eventually in Hong Kong, returning to her home district to visit her parents only during holidays.

3.  During one such visits in 2011, she met a man known as Junior in a restaurant near her home and eventually formed a relationship with him by maintaining close contact and chatting on the phone every day with him upon her return to Hong Kong to continue with her employment.

4.  In July 2014 the Applicant returned to her home in the Philippines for vacation.  One evening she met up with Junior in a restaurant, and while they were having meals, Junior’s wife suddenly appeared with her friend shouting abuses at the Applicant for trying to steal her husband, then grabbing her forcefully and pulling her hair, but the Applicant managed to make her escape from the restaurant and ran home.  Yet Junior’s wife soon arrived with her friend outside the Applicant’s home holding a knife and shouting threats to her that she would kill her if she continued to see her husband.

5.  After the incident the Applicant fled back to Hong Kong to continue with her job,and had since ceased all her contact and relationship with Junior, but when she heard that his wife who was a wealthy and influential person in her home district was still looking for her everywhere in the Philippines, the Applicant was afraid to return home after the termination of her employment contract and therefore overstayed in Hong Kong, and upon surrendering to the Immigration Department, she raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form on 13 December 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.  By a Notice of Decision dated 23 February 2017 the Director of Immigration (“the 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 (“HKBOR”) being violated including right to life under Article2 (“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 all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that the risk of harm from Junior’s wife is likely to materialize upon her return to the Philippines due to the low intensity and frequency of past ill-treatment from her, that Junior’s wife merely wanted the Applicant to cease her relationship with her husband and that after the Applicant had done so all these years that there was no reason why the wife would still have any adverse interest in the Applicant, that in any event it was a private personal dispute between 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 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 the Applicant as an able-bodied adult withwork experience to move to other part of the Philippines away from her home district in largecities such as Cebu where it would be difficult if not impossible for Junior’s wife to locate her.

8.  On 8 March 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which she attended an oral hearing on 11 January 2018 before the Board during which she gave evidence and answeredquestions put to her by the adjudicator for the Board.  On 6 June 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board accepted the Applicant’s account of her dispute with the wife of her former boyfriend as alleged, but found no reliable evidence that she was still looking for the Applicant or to still have any adverse interest in her after the Applicant has ceased her relationship with her boyfriend all these years, that it did not accept that the Applicant has any well-founded fear of harm from the wife upon her return to the Philippines,and that with state or police protection as well as reasonable internal relocation available for the Applicant to move safely to other places in the Philippines away from her home district where she can re-establish her life with her vast work experience and where it would be virtually impossible for Junior’s wife to locate her.

10.  On 13 July 2018 the Applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and apart from repeating her claim of fear of being harmed by her friend’s wife upon her return to the Philippines, she did put forward the following grounds for her intended challenge:

(1) that the Director and the Adjudicator reached their decisions wrongly in assessing hernon-refoulement claim as being not reasonable or fair as required by the Wednesburytest; and

(2) that the Adjudicator failed to give her sufficient time and chance to arrange relevant evidence for her non-refoulement claim as well as her appeal.

11.  These are however just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as tohow they applied to her case or how the Director or the Adjudicator had erred in their decisions,or in what way were their decisions unfair or unreasonable, or how did the Adjudicator fail to give her sufficient time or opportunity to adduce relevant evidence for her claim or appealwhen she never raised any such issue during her appeal hearing before the Board.  As such andin the absence of any error of law or procedural unfairness in her process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant,I do not find either of her grounds reasonably arguable for her intended application, nor any reasonably arguable basis for her to challenge the findings of the Director or the Board.

12.  As has been repeatedly emphasized by the Court of Appeal, 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.  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 the Applicant’s claim 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.

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 these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse 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