GERSANIBA IRHINE LEBAQUIN AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD

HCAL 374/2019

[2023] HKCFI 2137

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 374 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 the Applicants in open court;

Leave for the Applicants to apply for judicial review refused.

Observations for the Applicants:

1.  The 1^st Applicant (“A1”) is a 45-year-old national of the Philippines who was allowed to work in Hong Kong as a foreign domestic helper under a valid employment contract, but after giving birth to her son, the 2^nd Applicant (“A2”) in on 25 March 2009 from a relationship with a Sri Lankan man, her employment was subsequently terminated on 18 April 2009, and when her visiting visa as extended also expired on 23 July 2009, she did not depart and instead overstayed in Hong Kong, and on 24 July 2009 she surrendered to the Immigration Department and raised a non-refoulement claim jointly for herself and A2 on the basis that if they returned to the Philippines they would be harmed or killed by A1’s former fiancé and/or his family for refusing to go through their pre-arranged marriage. The Applicants were subsequently released on recognizance pending the determination of their claim.

2.  A1 was born and raised as a Muslim in Santa Rosa, Manila and moved to Iloilo City with her family when she was young, and in 1995 when she was 15, her parents arranged for her to marry a boy from a wealthy family in the same district in future when they became adults.

3.  As she was not willing to go through the arranged marriage to marry her fiancé, after leaving school A1 fled from her home to take shelter in an uncle’s place in City Pasay in metro Manila, and in 2001 she moved to Timawa Town to work in a city mall.

4.  One day she ran into her mother in the mall and revealed to her mother of her unwillingness to go through the arranged marriage, and was told by her mother that the parents of her fiancé were very angry with her, and was advised that for her own safety she should not return to Iloilo City.

5.  In 2003 A1 moved to Manila, and in 2005 she came to Hong Kong to work as a foreign domestic helper, during which she met a Sri Lankan man who was also a Muslim working in Hong Kong as a foreign domestic helper, and soon they formed a relationship.

6.  In 2008 when A1 returned to the Philippines for holiday, the parents of her former fiancé came to see her to insist that she should marry their son as arranged, during which the father became agitated and grabbed her shoulders when she refused their demand, and requested her to change her mind but to no avail. Eventually they left after a few hours without any further incidents.       

7.  Thereafter A1 returned to Hong Kong to continue with her employment, and upon given birth to A2 in March 2009, her last employment was subsequently terminated in April 2009, and upon overstaying in Hong Kong she then raised a joint non-refoulement claim jointly for herself and her son, and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

8.  While being released on recognizance pending the determination of her claim, A1 in 2014 married her Sri Lankan boyfriend in Hong Kong thus legitimizing A2 as a child of their marriage.                

9.  By a Notice of Decision dated 17 January 2017 the Director of Immigration (“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”).

10.  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 the claimed risk of them being harmed or killed by A1’s former fiancé or his family upon their return to the Philippines is real and foreseeable due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any intention of any of them to harm let alone to kill A1, or even A2 whom they have never met and probably not have known his existence at all, nor is it accepted that there would still be any adverse interest from them in A1 when her former fiancé had had no further contact with her for more than 20 years, while she last met his parents in 2008 in only a casual conversation with no evidence of any threats from them at all, that in any event even if such risk is still real that it arose from a private 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 (“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 A1 as an able-bodied adult with working experience to move with A2 to other areas 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 them.

11.  On 27 January 2017 the Applicants lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which A1 on behalf of herself and A2 attended an oral hearing on 25 May 2018 before the Board during which A1 gave evidence and answered questions raised of their claim by the Adjudicator for the Board. On 27 December 2018 their appeal was dismissed by the Board which also confirmed the Director’s decision.

12.  In its decision the Board accepted A1’s claim of her refusal to marry her former fiancé as arranged by their families but found her alleged risk of harm from them as vague and speculative in the absence of any evidence of A1 or her family ever been threatened or harmed in the past due to her unwillingness to fulfil the terms of the arranged marriage, nor is there any cogent evidence before the Board that some 20 years later that her former fiancé or his family would still have any adverse interest in her or to have any intention to harm her now or at all, and concluded that her claim that she or her son will be harmed by them is wholly without foundation that it is not satisfied that they would be harmed by her former fiancé or his family upon their return to the Philippines, or that A1 would be unable to sustain her living in the Philippines or to support A2 given that there is no evidence that she has been estranged from her family or that she would be homeless or unable to subsist if she were to return to her home country with her son when the evidence from her is that her mother is aware of the birth of her son and has been supportive of her that there is no reason why her mother and family would not welcome their return to the Philippines that their claim for non-refoulement protection failed on all applicable grounds.    

13.  On 11 February 2019 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 or in A1’s supporting affirmation of the same date in which she just stated that they reject the decision as it disregarded their dangerous situation but without providing any necessary or relevant details or particulars or elaboration as to how it did so, nor did she do so at the hearing of their application or put forward any proper ground for their intended challenge. As such and in the absence of any error of law or irrationality 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.

14.  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: ReLakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst vDirector of Immigration [2018] HKCA 524.

15.  In the Applicants’ case, the Board rejected their claim on its adverse finding on the credibility of their claimed risk of harm for the thorough and detailed analysis and reasoning set out in paragraphs 39 – 46 of its decision with the benefit of hearing A1 in her oral evidence and her answers to questions raised of their claim, 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 to challenge the finding of the Board.  

16.  The fact is that it has also been correctly established by the Director in his decision that the risk of harm in the Applicants’ claim if real is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of the Philippines, a decision also confirmed by the Board, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK vJenkins & Anor [2013] 1 HKC 526.

17.  I am of course mindful of the fact that A2 being a minor now aged 14 was not legally represented in these proceedings as required under Order 80 r 2 of the Rules of the High Court, nor was he in his appeal before the Board, as for the claims of minors it would be necessary to separately consider and examine whether their case has been properly considered and determined by the Board in a manner sufficient to meet the high standards of fairness in proceedings of this nature, and to see whether there are matters that may support potential minor-specific non-refoulement bases which might not have been properly advanced to the Board due to lack of legal representation in their process before the Board, as held by the Court of Appeal in Fabio Arlyn Timogan v Even Ruth [2020] HKCA 971 that in some circumstances a lack of legal representation for children claimants before the Board or in the court proceedings can result in procedural unfairness.

18.  Given the fact that A2 was born in Hong Kong and has never been to the Philippines and hence never personally received any threats from A1’s former fiancé or his family, and that his claim is entirely premised on his mother’s claim which has been rejected by the Board as not real or foreseeable for the reasons given in the decision, and in dismissing their claim the Board did separately consider A2’s claim including any risk of his mother not being able to support him on her own or any impact which might be on him if his father did not accompany him to return to the Philippines (see [44] - [45] of Board’s decision), and as noted in the Director’s decision that A2 is a Filipino passport holder while his parents are legally married and that both are Muslims, I am unable to see any other matter which may support any potential non-refoulement bases specific to A2 but which might not have been advanced to the Board due to lack of legal representation for him in his appeal before the Board such that the high standards of fairness were not met.                          

19.  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.

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