PEREZ ADELA SIMEON v. TORTURE CLAIMS APPEAL BOARD

HCAL 605/2019

[2024] HKCFI 1177

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNO 605 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 Applicant in open court;

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 46-year-old national of the Philippines who arrived in Hong Kong on 1 June 2016 as a visitor with permission to remain as such up to 15 June 2016 when she did not depart and instead overstayed, and more than 3 months later on 26 September 2016 she surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if she returned to the Philippines she would be harmed or killed by people of the neighbouring village due to their disputes with her family.  She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Upper San Vicente, Baquio City, the Philippines and later moved with her family to Village Kalutit in Bontoc where the villagers had some ongoing land dispute with neighbouring Village Samuki.

3.  After leaving school the Applicant worked as a farmer, married her husband and raised a family with 4 children in her home village.

4.  One night in 2011 she was informed by her elder brother Hansel that their younger brother Pancho had in one of those conflicts with the Samuki villagers killed the daughter of one of the Samuki leaders, and warned that the Samuki villagers may take revenge against her as the only female member of their family in the sense of an eye for an eye.

5.  Fearing for her own safety, the Applicant therefore left the country shortly thereafter to work as a domestic servant in Malaysia until 2013 when she returned to the Philippines but stayed away from her home village by hiding in various other places such as Baguio, Cavite and Bulacan, but later when she heard that those Samuki villagers were looking for her everywhere, she therefore departed the Philippines again on 1 June 2016 for Hong Kong where she subsequently overstayed and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 29 January 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

6.  By a Notice of Decision dated 27 February 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 assessed the level of risk of harm from those Samuki villagers upon her return to the Philippines as low due to the absence of any past ill-treatment from them, that there is no evidence of any intention of them to harm or kill her other than her own speculations, that in any event it was a private dispute between those Samuki villagers and her family 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 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 working experience to move to other areas of the country away from her home district in large cities such as Cebu or Manila where it would be difficult if not impossible for anyone to locate her.

8.  On 12 March 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 20 September 2018 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 26 February 2019 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board found no reliable evidence of any threats from those Samuki villagers against the Applicant or her family or any intention of them to harm or kill her other than her own speculation, and that in any event even if such threat were real that it arose from some private dispute between her family and the Samuki villagers without any official involvement that state or police protection would be available to the Applicant upon her return to the Philippines as well as reasonable internal relocation alternatives for her to move safely to other parts of the country away from her home village without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.    

10.  On 4 March 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for relief was given in her Form or her supporting affirmation of the same date in which she just repeated her claimed fear for her life as before but without putting forth any proper ground for her intended challenge, nor was she able to do so at the hearing of 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: 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.

12.  In the Applicant’s case, the fact is that it has been correctly established by both the Director and the Board in their respective decisions that the risk of harm in her claim if real 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 vJenkins & 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 accordingly I refuse to grant leave and dismiss 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