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HCAL 696/2018
[2020] HKCFI 2206
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 696 of 2018
BETWEEN
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Garcia Ferlyn Luzon |
Applicant |
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Torture Claims Appeal Board |
1st Putative Respondent |
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Director of Immigration |
2nd Putative Respondent |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge Bruno Chan:
Leave to apply for judicial review refused.
Observations for the Applicant:
1. The Applicant is a 29-year-old national of the Philippines who arrived in Hong Kong on 5 March 2009 with permission to remain as a visitor up to 29 March 2009 when she did not depart and instead overstayed and was arrested by police on 27 July 2009. After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim on the basis that if she returned to the Philippines she would be harmed or killed by her boyfriend’s family who blamed her for his death in a traffic accident. She was subsequently released on recognizance pending the determination of her claim.
2. The Applicant was born and raised in Dolores, Quezon Province, the Philippines. After leaving school she worked for her sister looking after her child, and dated her former schoolmate who was from a wealthy family where his parents operated many businesses in Manila.
3. In 2008 the Applicant wanted to end their relationship and informed her boyfriend who was then in Manila, but when he was on his way to see her to try to change her mind, he was killed in a traffic accident after his car crashed into other vehicles.
4. Afterwards the Applicant was warned by the cousin of her boyfriend that his parents blamed her for their son’s death and may do something bad to her. Thereafter the Applicant started to receive threatening messages from unknown persons when she became fearful for her safety and felt that it was not safe for her to remain in the Philippines, and so on 5 March 2009 she departed for Hong Kong where she overstayed, and upon her arrest by the police, she raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form on 7 December 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.
5. By a Notice of Decision dated 13 February 2017 the Director of Immigration (“the 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 her boyfriend’s family upon her return to the Philippines due to the absence of any past ill-treatment from them, that there was no reliable evidence of their intention to harm or kill her other than some hearsays or her own speculation, 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 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 298,000 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 some large city where it would be difficult if not impossible for her perceived enemies to locate her.
7. On 23 February 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which she attended an oral hearing on 23 January 2018 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board. On 13 April 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.
8. In its decision the Board was prepared to accept the Applicant’s claim that the death of her boyfriend in the traffic accident might have caused his family to feel distraught and attributed blame for his death to her, but was not satisfied that she had received threats of harm or death from them or from anyone else associated with them, and found her evidence in this regard rehearsed and fabricated, and concluded that there is no reasonable likelihood or possibility or real risk that she would be targeted for harm now or in the foreseeable future upon her return to the Philippines that her claim for non-refoulement protection failed on all applicable grounds.
9. On 20 April 2018 the Applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in her Form, and in her supporting affidavit of the same date she merely stated that she wanted to review their decisions because they disregarded her dangerous situation but without providing any particulars or elaborations that they did so, nor did she put forward any proper or valid grounds for her intended challenge. Neither did she request any oral hearing for her application. As such and in the absence of any error of law or procedural unfairness in her process before the Director or the Board or in their decisions 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 the Director in his decision that the risk of harm in her claim 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.
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.
Dated the 2nd day of September 2020.
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(NG Hang-yin)
for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or his solicitors must: |
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). |
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Sent to the Applicant on 2nd September 2020
Garcia Ferlyn Luzon
Applicant’s ref. no.:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 2nd September 2020
Torture Claims Appeal Board
1st Putative Respondent’s ref. no.:
USM 6293/17/2/292/F334
Director of Immigration
2nd Putative Respondent’s ref. no.:
QA T/C 2871/16
(Formerly RBCZ 13244/16)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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