MANUEL AMELYN TORRES v. IMMIGRATION DEPARTMENT

HCAL 266/2018

[2020] HKCFI 1326

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 266 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 36-year-old national of the Philippines who arrived in Hong Kongon 7April 2014 with permission to work as a foreign domestic helper until the expiration of her employment contract on 7 April 2016 or within 14 days of its early termination.  When her employment contract was prematurely terminated in May 2014 she however did not depart and subsequently surrendered to the Immigration Department when she raised a non- refoulement claim on the basis that if she returned to the Philippines she would be harmed or killed by her former boyfriend over their domestic disputes.  She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Barangay Bayabo East, Tumauini, Isabela, the Philippines.  After leaving school she worked in various jobs in Baguio City, and in 2000 formed a relationship with her former boyfriend Charlie with whom she had a daughter.

3.  In 2008 they set up a grocery store in Baguio City, but instead of helping out at the store or found himself a job, Charlie just indulged in drinking alcohol and when drunk would become abusive towards the Applicant by slapping and hitting her.  After one particular violent incident when she was punched all over her body, the Applicant made a complaint to their village head, but when she subsequently returned home and found that Charlie had left with their daughter, and when the police just treated the matter as a domestic dispute and advised her to just reconcile with Charlie, the Applicant decided that she could no longer tolerate living with Charlie and moved to stay with a friend in La Trinidad, Benguet where she subsequently met a new boyfriend and cohabited with him in Balaoan.

4.  However, one day in March 2012 Charlie and his brother armed with a gun came tothe Applicant’s home to accuse her of infidelity and threatened to kill her and her boyfriend if they did not end their relationship.  Thereafter the Applicant became fearful for her life and decided to leave the Philippines by seeking employment in Hong Kong, which she eventually did in April 2014 when she arrived to work as a foreign domestic helper, but when her employment contract was prematurely terminated in May 2014, she raised her non-refoulement claim for protection, for which she later completed a Non-refoulement Claim Form on 18 April 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.  By a Notice of Decision dated 23 August 2016 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 former boyfriend Charlie upon her return to the Philippines as low due to the low intensity and frequency of past ill-treatment from him, that after all these years it was doubtful that Charlie would still have any adverse interest in her, that in any event it was a domestic 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 with work experience to move to other part of the Philippines away from her home district in large cities such as Manila where it would be difficult if not impossible for Charlie to locate her.

7.  By a Notice of Further Decision dated 12 July 2017 the Director again rejected the Applicant’s claim upon receiving and considering essentially the same claim from her 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 ClaimsAppeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 1 September 2016, and for which she attended an oral hearing on 8 November 2017 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 26 January 2018 her appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.  In its decision the Board was prepared to accept the Applicant’s account of threats from Charlie as true but found no further evidence of threats from Charlie since she left the Philippines in 2014, that the passage of time has reduced the risk to the Applicant below that of a real risk, that it was not accepted that she had a well-founded fear of future harm from Charlie, and that in any event state or police would be available to the Applicant that her claim failed on all applicable grounds.

10.  On 21 February 2018 the Applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking reliefwas given in her Form, and in her supporting affidavit of the same date she merely statedthat she wanted to appeal and review their decisions because they disregarded her dangerous situation.  Nor did she request for any oral hearing for her application.

11.  As has been repeatedly emphasized by the Court of Appeal, judicial review does notoperate as a rehearing of a non-refoulement claim when the proper occasion for an 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 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 essentially that on the basis of her own case that she did not have any well-found fear of harm from her former boyfriend after all years since she left the Philippines and that given the nature of the threats and the absence of any official involvement that state and police protection would be available to her, and in the absence of any error of law or procedural unfairness in its decision being 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 been established by the Director in his 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