MATBAGAN IMELDA MANODEN v. IMMIGRATION DEPARTMENT

HCAL 437/2018

[2020] HKCFI 1298

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 437 of 2018

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 the Applicant being present / 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 last arrived in Hong Kong on 28 May 2011 with permission to remain as a visitor up to 11 June 2011 when she did not depart and instead overstayed and was arrested by police on 4 February 2014.  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 husband’s uncle over some personal disputes.  She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Baguio City, Benguet Province, the Philippines.  After graduating from university with a degree in social work, she worked as a community worker and married her husband.

3.  In 2010 her husband’s uncle hired her to assist him in his campaign for the municipal mayor in the Sagada Mountain Province, but when he lost the election, he blamed the Applicant for his loss and threatened to kill her.

4.  As her husband’s uncle was a powerful and influential man in his home district, the Applicant feared for her own life, and so on 28 May 2011 she departed the Philippines for Hong Kong where she overstayed, and upon her subsequent arrest by the police she raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form on 22 March 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.  By a Notice of Decision dated 25 July 2016 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”),risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights (“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 all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her husband’s uncle to the Applicant upon her return to the Philippines as low due to the absence of any past ill-treatment from him, that there was no evidence of any real intention on the part of her husband’s uncle to harm or kill her, that in any event it was a private personal dispute between 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 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 the Applicant as an able-bodied adult with work experience to move 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 uncle to locate her.

7.  By a Notice of Further Decision dated 14 July 2017 the Director again rejected the Applicant’s claim in the absence of any response from her to an earlier invitation to submit additional facts which may be relevant to her non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

8.  By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 8 August 2016, and for which she attended an oral hearing on before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 15 March 2018 her appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.  In its decision the Board accepted that her husband’s uncle may have a dispute with the Applicant over his election campaign but found no reliable evidence that he had any real intention to harm or kill her, and that in any event with state/police protection and reasonable internal relocation within the Philippines available for the Applicant to move safely to other large cities away from her husband’s uncle that her claim for non-refoulement protection failed on all applicable grounds.

10.  On 19 March 2018 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 affirmation of the same date she merely stated that she wants to review the Board’s decision because it had disregarded her dangerous situation in the Philippines but without providing any particulars or specifics or elaborations as to how it was so, 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 see any reasonably basis for her to challenge the finding of the Board.  

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 or her 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.  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 the Applicant’s 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.

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