DAMALEN AMELIA NELMIDA v. TORTURE CLAIMS APPEAL BOARD

HCAL 566/2019

[2022] HKCFI 2639

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 566 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 44-year old national of the Philippines who arrived in Hong Kong on 7 June 2016 with permission to work as a foreign domestic helper until the expiration of her employment contract on 7 June 2018 or within 14 days of its early termination, but when her employment was prematurely terminated on 6 October 2016, she did not depart and instead overstayed, and on 15 November 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 her abusive husband and/or her creditor over her unpaid debts. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Basco, Batanes, the Philippines.  After leaving school she married her husband and raised a family with an adopted daughter in her home district.

3.  Soon the Applicant discovered that her husband was violent in temper and indulged in alcohol, and whenever he was drunk he would be abusive towards her by slapping and beating her at will.

4.  In order to help support their family, the Applicant in 2013 borrowed a loan from a local money-lender to start a poultry business which however did not do well, and in order to repay her loan, she went to Taiwan in 2015 to work as a domestic helper before coming to Hong Kong in June 2016 to work as a foreign domestic helper, but when her employment was prematurely terminated in October 2016, she was unable to repay her loan, and when her creditor came to her home in the Philippines to demand for repayment, and when her husband became furious over her loan problem and threatened to kill her, the Applicant was afraid to return to the Philippines, and so she overstayed in Hong Kong and subsequently raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 8 January 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

5.  By a Notice of Decision dated 7 February 2018 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 assessed the level of risk of harm from her husband or her creditor upon her return to the Philippines as low 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 them to seriously harm or kill her, that in any event her problems with them were private domestic or monetary disputes 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 104 million people spread across a 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 country away from her home district in large cities such as Manila where it would be difficult if not impossible for anyone to locate her.

7.  On 14 February 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 17 September 2018 before the Board during which she gave oral evidence and answered questions raised of her claim by the Adjudicator for the Board. On 19 February 2019 her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision the Board found serious inconsistencies discrepancies and contradictions in the Applicant’s evidence that it doubted the credibility of her claim of fear of harm from her husband or her creditor that caused her to overstay in Hong Kong, and that at the hearing she conceded that she no longer fears any harm from her husband as they have reconciled after she had reached settlement with her creditor over the repayment of her loan that it concluded that she will not face any risk of harm from anyone upon her return to the Philippines that her claim for non-refoulement protection failed on all applicable grounds.

9.  On 27 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 in her supporting affidavit of the same date to which she just attached a copy of the Board’s decision but without putting forth 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 Board essentially rejected her claim on its adverse finding on her credibility for the detailed and thorough analysis and reasoning set out in paragraphs 20 – 43 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, 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.  

12.  Furthermore, the fact is that it has also been correctly established by the Director in his decision 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, 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.                

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 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