COSTORIO ROCELYN ANGANA v. TORTURE CLAIMS APPEAL BOARD

HCAL 203/2020

[2023] HKCFI 2659

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 203 OF 2020

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;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 43-year-old national of the Philippines who arrived in Hong Kong on 13 July 2008 as a visitor with permission to remain as such up to 27 July 2008 when she did not depart and instead overstayed, and was arrested by police some 8 months later on 23 March 2009 for using and possessing an identity card of another person and for undertaking unauthorized employment, for which she was subsequently convicted and sentenced to prison for 13 months, during which she raised a torture claim to the Immigration Department on the basis that if she returned to the Philippines she would be harmed or killed by her elder brother who had raped her in the past, and after her torture claim was rejected, she then sought non-refoulement protection on the same basis. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Poblacio, Magsaysay, Davao del Sur, the Philippines where she lived with her parents and her siblings.

3.  One night in 1992 when she was 13, and when her parents and other siblings were away from home, the Applicant was raped by her elder brother Renato who thereafter threatened her not to tell anyone or else he would kill her.

4.  Thereafter Renato raped her 2 more times, and again threatened her not to tell anyone or else she would be killed, and hence the Applicant was living in constant fear of her brother that she had always wanted to move away, which she was eventually able to do in 2005 when she moved to stay with her sister in Island Garden City, Davao del Norte where she worked as a saleslady.

5.  However, as she felt she would not be entirely free from her brother’s threats living in her country, she therefore departed the Philippines on 13 July 2008 for Hong Kong where she subsequently overstayed, and upon her arrest by the police she raised her torture claim, and after it was rejected she then sought non-refoulement protection, for which she completed a Supplementary Claim Form (“SCF”) on 23 August 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 12 September 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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 found no substantial grounds for believing that her claimed risk of harm from her brother Renato upon her return to the Philippines is real and foreseeable given the fact that she had had no further contact with or threats from her brother after she had moved to her sister’s place in 2005 or that he would still have any adverse interest in her after all these years since she left the country in 2008, that there is no evidence of any real intention of her brother to seriously harm or kill her especially when she had never disclosed the rapes to anyone in her country, 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 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 areas of the country away from her home district in large cities such as Manila where it would be difficult if not impossible for her brother to locate her.

8.  On 27 September 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 16 September 2019 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 19 December 2019 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence that it doubted her claim of fear of harm from her elder brother Renato that caused her to leave her home country to come to Hong Kong for protection, that there is no evidence or reason for her brother to harm or kill her as there is no suggestion that she was going to tell anyone about the rape that took place years ago, and that in any event it was a private dispute between the 2 of them within the family without any official involvement that state or 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 away from her home district without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.

10.  On 20 January 2020 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 affirmation of the same date in which she just stated that she rejects the decision but without giving any reasons or putting forward any proper ground for her intended challenge, nor was she able to do so at the hearing of 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.

11.  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.

12.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in her 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, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

13.  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.

14.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and accordingly I 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