PERATER ALICE PARCON v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 559/2019

[2022] HKCFI 731

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 559 of 2019

Application for Leave to Apply for Judicial Review

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

Following:

	consideration of documents only; or
	consideration of documents and Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The Applicant is a 40-year-old national of Philippines (DOB 5 October 1981) who first arrived in Hong Kong as a domestic helper on 15 November 2013.  After her last employment contract was prematurely terminated on 18 July 2016, she did not depart and had overstayed since 2 August 2016.  On 13 January 2017, she surrendered to the Immigration Department and lodged her non-refoulement claim (“NRC”) on 28 April 2017 on the basis that if she were to be returned to the Philippines, her life would be in danger due to threats of harm from her husband.  She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant’s NRC was dismissed by the Director of Immigration (“Director”) on 19 June 2018.  On 22 February 2019 her appeal was dismissed by the Torture Claims Appeal Board (“Board”) which also confirmed the decision of the Director.  On 27 February 2019 the Applicant filed a Form 86 for leave to apply for judicial review of the Board’s decision.

Background

3.  The Applicant was born and raised in Barangay, Carabalan, Himamaylan City, Negros Occidental, Philippines.  She had received 14 years’ education.  She is a graduate with a Bachelor of Science in Commerce from the University of Negros Occidental Recoletos in Bacolod City, Philippines.  Between 2002 and 2010, she worked as a secretary (for 6 months) and as a sales clerk and cashier (for 7 years) in Bacolod City.  Between 2011 and 2013 she started her own business as proprietor of a piggery in her home area.  She worked as a foreign domestic helper in Hong Kong from November 2013 to July 2016.

4.  The Applicant met her husband in 2003 and they got married in December 2010.  Their relationship was good until she returned home to live with her parents and started her piggery farming in 2011.  Her husband became an alcoholic and a drug addict.  Between October 2011 and April 2013 there were 4 occasions on which he threatened or assaulted the Applicant as he demanded money from her.  On one of these occasions she found a gun in his bag, and he threatened to kill the Applicant and her family if she refused his request for money.  The Applicant continued to send him money when she was working as a domestic helper in Hong Kong.  On her return to the Philippines in November 2014, he assaulted her during a money dispute.  After his employment was terminated, she did not give him any money and her parents also refused his demand for shares of the farmland.  When the Applicant returned to the Philippines again in February 2016, he threatened her with a gun as she confronted him with the finding of drug in his laundry.  According to his cousin her husband was also a drug dealer.

5.  In November 2016 the Applicant’s father was shot dead while doing farm work.  A report was made to the police.  She believed her husband was the killer as he had disappeared in her home area for several months.  Her family withdrew the police report later in the hope that he would not make further troubles.  Later in 2017, the Applicant’s brother was shot at whilst riding his motorcycle.  The Applicant believed her husband was the shooter as his house was a kilometre away from the location.  There was no eye-witness to both incidents and no evidence to support her suspicion.

6.  The Applicant did not have any contact with her husband since his disappearance in 2016, and he remained missing ever since.

7.  The Applicant worked as a domestic helper in Hong Kong between November 2013 and July 2016.  All three employment contracts were prematurely terminated.

The Director’s Decision

8.  The Director considered the Applicant’s claim on all the applicable grounds under the Unified Screening Mechanism (“USM”) including risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“Torture Risk”), risk of her absolute and non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) being violated including right to life under Article 2 of Section 8 (“BOR 2 Risk”), and risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 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”).

9.  By a Notice of Decision dated 19 June 2018 the Director refused the Applicant’s claim because there was no evidence that her life would face a genuine and substantial risk from her husband upon her return to the Philippines.  Besides, reliable and objective Country of Origin Information (“COI”) indicated that reasonable state or police protection would be available to the Applicant.  Reasonable internal relocation alternatives were also available in the Philippines where a large population of more than 104 million people spread across a large territory of 300,000 square kilometres.  It would not be unduly harsh for the Applicant as an able-bodied adult with formal education and 14 years of working experience to relocate to other areas of the Philippines such as Cebu or Manila where it would be difficult for the husband to locate her.

The Board’s Decision

10.  On 3 July 2018 the Applicant lodged an appeal to the Board against the Director’s decision, for which she attended an oral hearing on 18 October 2018 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator of the Board. On 22 February 2019 her appeal was dismissed by the Board which also affirmed the decision of the Director.

11.  Having considered all the evidence, the Board made the following findings and determined that the Applicant’s claim failed in all applicable grounds:

(a)  The Applicant’s claim was based on domestic violence and her fear of harm from her husband who was a drunkard, a drug addict and also a drug dealer.  His acts of drug dealing, assaults and threats to the Applicant were criminal in nature which could be dealt with by law enforcement in the Philippines.  The Applicant did not seek help from the law enforcement or government agencies because she was ashamed for the matter to reach the village level.

(b)  After her last employment contract was terminated in July 2016, the Applicant did not raise her NRC until 2017 when she realized that she would face removal after her visa expired.

(c)   Her claim did not involve any government, political or religious issue.  There was no involvement of the government authorities, public official or other person acting in an official capacity. Objective COI showed that reasonable state/police protection and assistance would be available to the Applicant if resorted to.

(d)  The Applicant had experience in living independently in a large city away from her family home.  She studied and lived in Bacolod City for 13 years; she lived in Talisay, Cebu in April 2016 while waiting for her visa; and she lived in Hong Kong as a domestic helper adjusting to a different culture and language for 4 to 5 years.

(e)  The Applicant was versatile, resourceful and independent.  Her experience of working in commence and managing a piggery showed that she was a capable woman who was able to adjust to living in a new environment and finding work to support herself.

(f)  Internal relocation was a real and workable option to avoid meeting her husband.  She was well able to relocate to another city far away from his home locality without any risk of being located by him.

(g)  The Adjudicator found no evidence of Torture Risk, BOR 2 Risk, BOR 3 Risk or Persecution Risk.

Leave for Judicial Review

12.  On 27 February 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision with no ground for seeking relief given in the Form.  In her supporting affidavit of the same date, the Applicant maintained that the Immigration Department disregarded her dangerous situation.

Discussion

13.  The role of this Court is supervisory.  The assessment of the NRC is primarily a matter for the Board (and the Director).  Findings of facts is a matter exclusively within the province of the Board.  This Court will not intervene unless there are errors of law or procedural unfairness or irrationality in its decision.  Judicial review is not an avenue to revisit the Board’s assessment in the hope that the Court may consider the matter afresh.

14.  In this case the Applicant has not been able to raise any valid ground to challenge the Board’s decision.  The fact is that it has been established by the Board (and the Director) that her perceived risk of harm is a localized one.  There are reasonable relocation options and 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.

15.  Having considered the Board’s decision with rigorous examination and anxious scrutiny, the Court does not find any error of law or procedural unfairness in the process before the Board or in its decision.  The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.  There is no realistic prospect of success in the intended judicial review.

Conclusion

16.  I therefore refuse to grant leave for the intended judicial review and accordingly dismiss this 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