TANOY ZAHAN VALER v. TORTURE CLAIMS APPEAL BOARD

HCAL 469/2023

[2023] HKCFI 2868

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 469 OF 2023

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 the Applicant in open court / the Applicant being absent in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 35-year-old national of the Philippines who arrived in Hong Kong on 2 December 2020 with permission to work as a foreign domestic helper until the expiration of her employment contract on 2 December 2022 or within 14 days of its early termination, but when her employment was prematurely terminated on 18 March 2021 she did not depart and instead overstayed, and on 20 May 2021 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 a Muslim rebel for refusing to continue to work for him. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Labason, the Philippins. After leaving school she worked in various odd jobs as a waitress and cashier, met and formed a relationship with her boyfriend Ernesto, and raised a family with 2 children in her home district.

3.  In 2018 she met a man Gilbert who claimed to be a lawyer with political connections, and became friendly with him by texting and seeing him regularly, and when it was discovered by her boyfriend Ernesto, it led to a big fight between them that the Applicant left thereafter to move in with Gilbert.

4.  Soon Gilbert disclosed to her that he was a member of a Muslim rebel group fighting the government, and required her to work for him by delivering messages and spying on various objects, and eventually Gilbert forced her to have sex with various people which he said was necessary for his rebel activities, and when she refused or was reluctant, he would beat her and threatened to kill her and her children.

5.  Fearing for her safety, the Applicant seized an opportunity when Gilbert was away from home in March 2020 to make her escape to Tagum City where she made arrangements to leave the country by applying to work as a foreign domestic helper in Hong Kong, which she eventually did on 2 December 2020 when she arrived in Hong Kong to start her employment as a foreign domestic helper, but after her employment was terminated on 18 March 2021, she was afraid to return to the Philippines due to threats from Gilbert, and therefore overstayed in Hong Kong and subsequently raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 6 July 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 30 July 2021 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”).

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 Gilbert upon her return to the Philippines as low due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of Gilbert to seriously harm or kill her or that he was indeed a member of any rebel group as alleged, that in any event it was a private relationship dispute between the 2 of 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 (“COI”) show that reasonable internal relocation alternatives are available in the Philippines with a large population of 110 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 areas of the country away from her home district in large cities such as Manila where it would be difficult if not impossible for Gilbert to locate her.

8.  On 11 August 2021 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 26 October 2022 before the Board together with her lawyer from DLS during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board and with submission made on her behalf by her lawyer. On 16 March 2023 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence in particularly as to Gilbert being a member of a rebel group that it doubted her claim of fear of harm from him that caused her to come to Hong Kong to work as a foreign domestic helper for non-refoulement protection, and instead that she just wanted to cease working as a sex worker for Gilbert and instead came to Hong Kong to work as a foreign domestic helper but after the termination of her employment she therefore fabricated her claim so as to remain in Hong Kong, and as there is no evidence that she will face any real or personal risk from anyone upon her return to the Philippines that her claim for non-refoulement protection failed on all applicable grounds.

10.  On 27 March 2023 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her supporting affirmation of the same date she put forward the following grounds for her intended challenge:

(1)  That the Board erred by not applying the required high standards of fairness in its determination of the Applicant’s claim and failed to give her sufficient opportunity to arrange for further evidence relevant for her claim and appeal;

(2)  That the Board considered irrelevant issues and was inconsistent in its reasoning and cherry-picked issues to support its decision;

(3)  That the Board failed to evaluate and make findings as to whether there is a consistent pattern of violation of human rights in the southern part of the Philippines due to the Muslim rebels, or to analyse and assess whether state protection exists for the Applicant; and

(4)  That the Board failed to evaluate any relocation options within the Philippines for the Applicant to avert the threats of Muslim rebels.

11.  These are however all just broad and vague assertions of her containing a few key words or phrases but without any particulars or specifics or elaborations as to how they apply 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, or how did the Board fail to apply high standards of fairness, while the Board was entitled to disbelieve Gilbert to have any connection with any rebel groups in the Philippines in the absence of any reliable evidence other than the Applicant’s bare assertions. As such and as none of these assertions were elaborated or presented with any relevant or necessary particulars or specifics by the Applicant, I do not find any of them reasonably arguable 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 Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 95 - 119 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim as well as submissions from her lawyer, and in the absence of any error of law 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 to challenge the finding of the Board.

14.  The fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim if real is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of the Philippines, a decision also confirmed by the Board, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

15.  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.

16.  Moreover, the Applicant recently on 9 October 2023 filed an affirmation requesting to withdraw her application as she wants to return to her home country.

17.  In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of her latest confirmation of her wish to return to her home country, I accordingly dismiss 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