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HCAL 563/2019
[2022] HKCFI 2640
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 563 of 2019
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Pampag Amy Pablico |
Applicant |
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Torture Claims Appeal Board |
Putative Respondent |
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Director of Immigration |
Putative Interested Party |
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 43-year old national of the Philippines who last arrived in Hong Kong on 5 August 2016 with permission to work as a foreign domestic helper in continuation with her employment contract until its expiration on 13 December 2016 or within 14 days of its early termination, but when it was prematurely terminated on 3 September 2016, she did not depart and instead overstayed, and on 19 September 2016 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. She was subsequently released on recognizance pending the determination of her claim.
2. The Applicant was born and raised in Cairojan, Passi, Iloilo City, the Philippines. After leaving school she married her husband and raised a family with 2 children in her home district.
3. Due to her husband’s limited income as a tricycle driver, the Applicant in 2002 went to Singapore and then Saudi Arabia to work as a domestic helper to help support the family. However, upon returning to the Philippines in 2010, she discovered that her husband had been indulging in gambling and drinking, and became involved with gangsters, and when he was drunk, he would become abusive and violent towards her.
4. Finding herself unable to tolerate her husband’s abuses, the Applicant in 2011 moved back to stay in her parents’ place, but when her husband threatened her that he would kill her if she refused to return to their home, the Applicant therefore departed the Philippines in April 2012 for Hong Kong to start working as a foreign domestic helper.
5. In August 2016 when she returned to the Philippines to stay in her parents’ home, her husband again came to threaten to kill her if she still failed to return to their home, the Applicant therefore fled back to Hong Kong to continue with her employment, but when her last employment was prematurely terminated in September 2016, she 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 11 June 2018 and attended screening interview before the Immigration Department with legal representation from Duty Lawyer Service (“DLS”).
6. By a Notice of Decision dated 27 July 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”).
7. 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 risk of her being harmed or killed by her husband upon her return to the Philippines due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of her husband to seriously harm or kill her and which she never bother to seek assistance form the police, that in any event it was a private domestic dispute between the two of them 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 or Cebu where it would be difficult if not impossible for her husband to locate her.
8. On 9 August 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, for which she attended an oral hearing on 12 November 2018 before the Board during which she gave oral evidence and answered questions raised of her claim by the Adjudicator for the Board. On 20 February 2019 her appeal was dismissed by the Board which also confirmed the Director’s decision.
9. In its decision the Board found no evidential basis in support of the Applicant’s claim that she will face any real risk of harm from her husband upon her return to the Philippines due to the low intensity and frequency of past ill-treatment from him, that in any event it was a private domestic dispute between them without any official involvement that state/police protection will be available to the Applicant if needed as well as reasonable internal relocation for her to move safely to other part of the country away from her home district without any risk of being located by her husband that her claim for non-refoulement protection failed on all applicable grounds.
10. 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, and in her supporting affidavit of the same date she merely stated that she cannot go back to her home country as her life is still in danger there 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.
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 fact is that it has been established by both the Director and the Board in their respective decisions 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, 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.
Dated the 26th day of August 2022
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(Chung Lai Fan, Christine)
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 26th August 2022
Pampag Amy Pablico
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 26th August 2022
Torture Claims Appeal Board
Putative Respondent’s ref. no.:
USM 12898/18/8/168/F820
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 2251/18 (Formerly RBCZ/10343/17)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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