VARGAS ARNELYN VICENTE v. TORTURE CLAIMS APPEAL BOARD

HCAL 1970/2018

[2020] HKCFI 1475

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1970 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 50-year-old national of the Philippines who last arrived in Hong Kong on 17 April 2009 with permission to work as a foreign domestic helper until the expiration of her employment contract on 23 December 2010 or within 2 weeks of its early termination, but when her contract was prematurely terminated on 23 December 2009, she did not depart and instead overstayed and subsequently raised a torture claim later taken as a non-refoulement claim on the basis that if she returned to the Philippines she would be harmed or killed by the former wife of her husband who accused her of having a bigamous relationship with her husband.  She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised Cabanatuan City, Nueva Ecija Province, the Philippines.  After leaving school she worked as a clerk in Manila, married her husband in 1991 and gave birth to three children.

3.  In 2004 she came to Hong Kong to work as a foreign domestic helper.  One day in December 2006 while she was back to her home in Manila for vacation, she received a letter from someone who claimed to be the original wife of her husband and accused her of having a bigamous relationship with her husband, and for which this woman threatened to kill her.

4.  When the Applicant confronted her husband, he admitted of having a previous relationship with that woman but denied that they had ever been married to each other, but warned her that the woman came from a wealthy and influential family with political connections in Cagayan Province.  As a result the Applicant became concerned with her safety but she did not report the matter to the police or seek their assistance, and instead she just returned to work in Hong Kong.

5.  In October 2009 her employment was prematurely terminated, but she did not depart Hong Kong as she was told by her children that some suspicious men had come to her home in the Philippines looking for her, and as she suspected that they were sent by her husband’s former wife to kill her, so she overstayed in Hong Kong and subsequently raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form on 15 January 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.  By a Notice of Decision dated 20 May 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 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 Applicant’s claim and assessed the level of risk of harm from her husband’s former wife upon her return to the Philippines as low due to the absence of any past ill-treatment from her, that any alleged threats from that woman were either based on the Applicant’s own speculations or hearsay from third parties, 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 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 working experience to move to other part of the Philippines away from her home district or Cagayan Province where it would be difficult if not impossible for her husband’s former wife or her people to locate her.

8.  On 1 June 2015 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 28 July 2016 before the Board during which she gave oral evidence and answered questions raised of her claim by the adjudicator for the Board.  On 23 February 2017 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board found the Applicant’s alleged past experience in the Philippines did not amount to any of the applicable risks, that there is no suggestion or evidence that her claimed fear relates to any state actor acting in any official capacity that it was only a private personal dispute that state/police protection would be available to her if needed, and that even if she had been able to show that she faced a real or genuine risk of harm as claimed, such risk was confined to the local area where she lived in the Philippines that with her working experience she can safely relocate to other area to re-establish her life and work without any fear or risk of being located that her claim for non-refoulement protection failed on all applicable grounds.    

10.  On 30 March 2017 the Director on his own initiative wrote to the Applicant to invite her to submit additional facts if any which she might consider relevant to her non-refoulement claim on all applicable grounds including any other absolute and non-derogable rights including right to life under Article 2 of the Hong Kong Bill of Rights Ordinance (“BOR 2 risk”), and in the absence of any response from her, the Director by a Notice of Further Decision dated 17 May 2017 found her to have failed to establish any personal and real risk of her absolute and non-derogable rights under HKBOR including BOR 2 risk being violated upon her return to the Philippines.

11.  The Applicant again lodged an appeal to the Board against that Further Decision of the Director, and for which the Board did not schedule any oral hearing and dealt with her appeal in her absence and on papers.  On 13 July 2018 her appeal was again dismissed by the Board which also confirmed the Further Decision of the Director.

12.  In its decision the Board found nothing to warrant another oral hearing for the Applicant’s second appeal given no new materials or facts had been submitted by the Applicant for her claims including BOR 2 risk, and that on the basis of her claim as before that there is no evidence showing that she would be at any risk of BOR 2 harm if refouled that her claim for non-refoulement protection failed under this ground.     

13.  On 19 September 2018 the Applicant filed her Form 86 for leave to apply for judicial review of this second decision of the Board, and in her supporting affidavit of the same date she put forward the following grounds for her intended challenge:

(1) procedural impropriety in failure to conduct sufficient inquiry into the relevant country of origin conditions;

(2) procedural impropriety/irrationality in failure to conduct oral hearing for her BOR 2 claim or to provide her sufficient opportunity to present her claim;

(3) error/misdirection in law in failure to take into account the considerations of psychological strain and threats to her personally or threats directly to kill her; and

(4) that there was no sufficient basis to conclude that she would not be at risk of being subjected to any kind of life risk upon refoulement.  

14.  These are however mainly just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to her case or how the Board or the adjudicator had erred in the decision, or in what way did the adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and I do not find any of them reasonably arguable for her intended challenge.  

15.  As for her complaint that her BOR 2 claim was assessed without any oral hearing either before the Director or the Board, the Court of Appeal has already held that there is no absolute right to an oral hearing as the question must depend on the standard of fairness required, the nature of the decision-making process in question, the procedural history of the matter including whether there has been an oral hearing before, the interest at stake and the importance of the decision, the issues involved and how the presence or absence of an oral hearing would affect the quality of the opportunity to make worthwhile or effective representations: ST v Betty Kwan [2014] 4 HKLRD 277 at paragraph 26.

16.  On the facts of the Applicant’s claim and in the light of the scope and threshold of a BOR 2 claim, as correctly found in the second decisions of both the Director and the Board, there is simply no room for engaging the BOR 2 ground, and no useful purpose would be served by an oral hearing, and I do not find their decisions not to hold an oral hearing amount to any procedural unfairness or breach of the high standard of fairness, as the Applicant has not identified, nor did she at the hearing before me, what additional facts or grounds that she would have put before the Director or the Board at an oral hearing that could advance her case under BOR 2 risk.  As such I do not find this ground reasonably arguable either.  

17.  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 or her 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.

18.  The fact is that it has been established by both the Director and the Board in their respective decisions 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.     

19.  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.

20.  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