BERNABE JACQUELINE ASUNCION v. TORTURE CLAIMS APPEAL BOARD

HCAL 613/2019

[2022] HKCFI 2868

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 613 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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 57-year-old national of the Philippines who last arrived in Hong Kong on 7 February 2015 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 7 February 2017 or within 14 days of its early termination, but when her employment was prematurely terminated on 4 March 2015, she did not depart and instead overstayed in Hong Kong, and on 8 March 2016 she surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if she returned to the Philippines she would be harmed or killed by her sister-in-law and her family over some land dispute in her home district and/or by her son’s creditors over his outstanding debts. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born in Manila, the Philippines. After leaving school she formed a relationship with a man with whom she gave birth to a son, but after their relationship had ended, she raised her son by herself by coming to work in Hong Kong as a foreign domestic helper.

3.  In 2003 the Applicant financed her son in his purchase of a piece of land in her home district from her brother and sister-in-law so that he could build a home for himself, with the purchase price payable by instalments up to 2012 with money remitted by the Applicant to her son every month.

4.  After her brother passed away in early 2015, and when the Applicant returned to the Philippines for visit, she was demanded by her sister-in-law for the remaining balance of the purchase price for the land, claiming that her son had failed to make those payments, and threatened to kill her if she failed to pay up the balance or return the land to her.

5.  Upon subsequent enquiry made by the Applicant, it turned out that her son had spent her remittances instead on his gambling, for which he had also incurred substantial gambling debts, and that his creditors had also threatened the Applicant to repay those debts for her son who had since disappeared.

6.  As a result, the Applicant became fearful for her life, and therefore departed the Philippines on 7 February 2015 to return to Hong Kong to resume her job as foreign domestic helper, but when her last employment was prematurely terminated on 4 March 2015, she was afraid to return to the Philippines, and so she overstayed in Hong Kong, and subsequently raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 8 March 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.  By a Notice of Decision dated 18 April 2018 the Director of Immigration (“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 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”).

8.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial ground for believing that there will be any real risk of her being harmed or killed by her sister-in-law or her son’s creditors upon her return to the Philippines due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no reliable evidence of any real intention of them to seriously harm or kill her, that in any event they were private monetary disputes between them without any official involvement that state or police protection would be available to the Applicant if resorted to upon her return to the Philippines, 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 part of the country away from her home district in large cities such as Cebu where it would be difficult if not impossible for anyone to locate her.

9.  On 27 April 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 12 November 2018 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 14 January 2019 her appeal was dismissed by the Board which also confirmed the decision of the Director.

10.  In its decision whilst the Board found the Applicant’s evidence as to her claimed threats from her sister-in-law over outstanding payments for the land and from her son’s creditors over his gambling debts confusing, inconsistent and conflicting that it doubted the credibility of her claim of fear of such harm that she was afraid to return to her home country, and that in any event even if her such claims were true that they were private monetary disputes without any official involvement that state/police protection would be available to the Applicant upon her return to the Philippines as well as reasonable internal relocation for her to move safely to other part of the country without any risk of being located by anyone that her claim for non-refoulement protection failed on all applicable grounds.

11.  On 5 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 in her supporting affidavit of the same date to which she merely attached copies of the decisions and documents of her hearing bundle for her earlier appeal to the Board but without putting forth any proper ground for her intended challenge, nor did she request any oral hearing for 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.

12.  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.

13.  In the Applicant’s case, the fact is that it has also been established by both the Director and the Board in their respective decisions that the risk of harm in her claim if true 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