GUILLERMO MARY ANN AUDITOR v. TORTURE CLAIMS APPEAL BOARD

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 40-year-old national of the Philippines who arrived in Hong Kong on 26 March 2019 with permission to work as a foreign domestic helper until the expiration of her employment contract on 26 March 2021 or within 14 days of its early termination, but when her employment was prematurely terminated on 11 April 2019, she did not depart and instead overstayed, and on 24 May 2019 she surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if she returned to the Philippines she would be harmed or killed by her creditors for failing to repay her debts. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Maramag, Bukidnon, the Philippines. After leaving school she married her husband and raised a family with 3 children in her home district.

3.  In 2013, she started her own disco business with the help of loans borrowed from various local money-lenders repayable by monthly instalments with interests which she initially managed to make from her business income.

4.  However, her disco business did not fare well, and so in 2018 she then started another business selling jewellery but which also turned out unsuccessful, and when she started to default with her loans repayments, her creditors then sent men to threaten her, and so in December 2018 she fled to Manila to hide in her aunt’s place.     

5.  In order to make her living the Applicant applied to work as a foreign domestic helper in Hong Kong, which she did on 26 March 2019 when she arrived in Hong Kong to start her employment, but when her employment was prematurely terminated on 11 April 2019, she was afraid to return to the Philippines and therefore overstayed in Hong Kong, and on 24 May 2019 she surrendered to the Immigration Department and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 1 November 2019 and attended screening interview before the Immigration Department with legal representation.             

6.  By a Notice of Decision dated 16 December 2019, 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 her creditors upon her return to the Philippines as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of any of her creditors to seriously harm or kill her other than to press her to repay her debts, that in any event these were private monetary disputes between her and her creditors only 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 106 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 Cebu or Davao where it would be difficult if not impossible for her creditors to locate her.

8.  On 30 December 2019, 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 22 February 2021 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 15 April 2021, her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision[1], the Board accepted the Applicant’s claim of fear of harm from her creditors but found no reliable evidence of any real intention of her creditors to seriously harm or kill her other than to press her to repay her debts, and that in any event these were private monetary disputes between her and her creditors only without any official involvement that state or police protection would be available to the Applicant upon his return to as well as reasonable internal relocation alternatives for her to move safely to other parts of the country away from her home district without any risk of being located by her creditors that her claim for non-refoulement protection failed on all applicable grounds.    

10.  On 12 May 2021, 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 affirmation of the same date in which she just stated that the decision is unfair and unreasonable but without providing any details or particulars or elaboration as to how it is so, 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 of the Board’s decision.

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 Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his 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.

13.  Furthermore, 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 his claim if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of, there is simply no justification to afford him 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 all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss her 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