BERONIO ALMA BANGAHON AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD

HCAL 749/2018

[2020] HKCFI 2374

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 749 of 2018

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 refused.

Observations for the Applicants:

1.  The 1^st Applicant (“A1”) is a 44-year-old national of the Philippines who had since 2007 been permitted to work in Hong Kong as a foreign domestic helper, but upon the expiration of her last employment contract on 18 April 2016, she did not depart and instead overstayed, and on 19 May 2016 she surrendered with her son born in Hong Kong in 2013, the 2^nd Applicant (“A2”), to the Immigration Department and jointly raised a non-refoulement claim on the basis that if they returned to the Philippines, they would be harmed or killed by A1’s boyfriend for having an affair with another man in Hong Kong resulting in the birth of A2.  They were subsequently released on recognizance pending the determination of their claim.

2.  A1 was born and raised in Buenavista, Agusan del Norte, the Philippines. After leaving school she went to work in Cebu City where she met her boyfriend and with whom she cohabited in his home where they raised a family of two children.

3.  However, due to her boyfriend’s violent temper, A1 had frequently been abused and beaten throughout their cohabitation, and to avoid his constant abuses, A1 in 2007 applied to come to Hong Kong to work as a foreign domestic helper, during which she formed a relationship with an Indian man, and with whom she eventually became pregnant and subsequently gave birth to A2 in October 2013.

4.  In 2014 she was told that after her boyfriend had learnt about her affair and A2 in Hong Kong, he became furious and had threatened to kill both of them if they ever returned to the Philippines.  As a result A1 became fearful for her life and that of A2, and so she overstayed in Hong Kong upon the expiration of her last employment contract in April 2016, and subsequently in May 2016 she together with A2 surrendered to the Immigration Department and raised their non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form on 30 November 2016 for herself and A2, and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.  By a Notice of Decision dated 16 December 2016 the Director of Immigration (“the Director”) rejected the Applicants’ claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of their 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 Applicants’ claim and found no substantial grounds for believing that there will be any real risk of them being harmed or killed by A1’s boyfriend upon their return to the Philippines due to the absence of or low intensity and frequency of past ill-treatment from him, that there is no evidence of any intention on his part to harm or kill them or to have any further adverse interest in A1 after all these years, that in any event it was a private domestic dispute between them without any official involvement that state or police protection would be available to the Applicants 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 100 million people spread across a vast territory of more than 300,000 square kilometers that it would not be unduly harsh for A1 as an able-bodied adult with working experience to move with A2 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 her boyfriend to locate them.

7.  On 28 December 2016 the Applicants each lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which they attended a combined oral hearing on 27 February 2018 before the Board during which A1 gave evidence on behalf of herself and A2 and answered questions put to her by the adjudicator for the Board.  On 24 April 2018 their appeals were dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board accepted A1’s claim of being abused for years by her boyfriend and of her fear of being harmed by him upon her return with A2 to the Philippines, but found in the absence of any official involvement that state/police protection would be available to them as well as reasonable internal relocation within the Philippines for them to move safely to other areas away from A1’s home district without any risk of being located by her boyfriend that their claim for non-refoulement protection failed on all applicable grounds.    

9.  On 30 April 2018 the Applicants filed their Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in their Form, and in her supporting affidavit of the same date A1 merely stated that the decision should be reviewed because it disregarded their dangerous situation without providing any particulars or elaborations as to how it was so, or putting forward any other proper ground for their intended challenge, or request any oral hearing for their application.  As such and in the absence of any error of law or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis for their 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 Applicants’ 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 their claim is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of the Philippines, there is simply no justification to afford them 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 Applicants’ claim.

13.  For these reasons I am not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review, and I accordingly refuse their 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