CALAYO ELENA ANONUEVO v. TORTURE CLAIMS APPEAL BOARD

HCAL 383/2019

[2022] HKCFI 1002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 383 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 53-year-old national of the Philippines who first arrived in Hong Kong in May 2013 with permission to work as a foreign domestic helper until the expiration of her employment contract or within 14 days of its early termination, but when her last employment was terminated in July 2016, she did not depart and overstayed since 28 August 2016, and on 1 September 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 the local drug syndicate as her husband owed them money but had disappeared. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Harobay, Calabanga, Camarines Sur, the Philippines. After leaving school she first worked as a farmer, then went to Taiwan to work as a domestic servant before returning to the Philippines in 2003 to marry her husband in her home district where they resided with her mother.

3.  In 2013 she started to work in Hong Kong as a foreign domestic helper, and on her return to her home in the Philippines for holiday in June 2016, she learnt that her husband had been involved in some drug trafficking activities for a local drug syndicate, and for which she had had a big quarrel with him that her husband thereafter left their home and disappeared.

4.  On 24 June 2016 the Applicant returned to Hong Kong to continue with her employment, but when her employment was subsequently terminated, she did not depart and instead overstayed in Hong Kong, during which she was told by her mother that after her husband had disappeared, the drug syndicate had sent men to her home looking for him because he owed them money, and had threatened to kill the Applicant as his wife if she failed to disclose his whereabouts or to repay the money on his behalf, and so the Applicant became fearful for her life and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 23 October 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

5.  By a Notice of Decision dated 15 November 2017 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”).

6.  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 there will be any real and substantial risk of her being harmed or killed by the local drug syndicate 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 evidence of any real intention of the drug syndicate to seriously harm or kill her over the whereabouts of her husband, 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 102 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 Philippines away from her home district in large cities such as Manila where it would be difficult if not impossible for the drug syndicate to locate her.

7.  On 28 November 2017 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 21 November 2018 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 31 January 2019 her appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board found no reliable evidence of any threats from the drug syndicate against the Applicant other than hearsays and her own speculation, that in any event in the absence of 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 safely move to other area away from her home district without any risk of being located that her claim for non-refoulement protection failed on all the applicable grounds.  

9.  On 11 February 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 her supporting affidavit of the same date to which she just attached a copy of the decision but without putting forward 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.

10.  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.

11.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in the Applicant’s 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.          

12.  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.

13.  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