TOBES HYDIE v. TORTURE CLAIMS APPEAL BOARD

HCAL 1130/2018

[2019] HKCFI 2454

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1130 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 Applicant:

1.  The Applicant is a 42-year-old national of the Philippines who last arrived in Hong Kong on 18 July 2008 with permission to remain as a visitor up to 1 August 2008 when she did not depart and instead overstayed until she was arrested by police on 9 April 2009. After she was referred to the Immigration Department for investigation, she raised a torture claim on the basis that if she returned to the Philippines she would be harmed or killed by her estranged boyfriend and/or by her creditor for failing to repay her loan, and after her torture claim was rejected, she raised a non-refoulement claim for protection on the same basis.  She was subsequently released on recognizance pending the determination of her claim. 

2.  The Applicant was born and raised in Bulacan, the Philippines.  After leaving school she worked in various odd jobs, and started to cohabit with her boyfriend with whom she later gave birth to two children.

3.  During their cohabitation the Applicant was frequently abused by her boyfriend who was a drug addict and was prone to behave violently at home towards the her.

4.  One day in 2004 after a particularly violent beating by her boyfriend, the Applicant left with the children to reside with her mother, and when her boyfriend later came and asked her to return and when she refused, he threatened that there would be serious consequences before he left.

5.  On his way after leaving the Applicant’s place the boyfriend ran into the Applicant’s brother, with whom he started an argument which then turned into a fight during which he slashed the Applicant’s brother with a cutter that the brother bled severely and had to be taken to the hospital for emergency treatment, and when the matter was reported to the police, the boyfriend then went into hiding and disappeared.

6.  Later in the same year the Applicant went to work as a domestic helper in Saudi Arabia, and in August 2005 when she returned to her mother’s home in the Philippines waiting for her next employment contract, her boyfriend suddenly appeared to try to grab her on the street, but when she started to scream, he then fled from the scene and was never seen or heard by the Applicant again.

7.  In September 2005 the Applicant went to Saudi Arabia for her new employment where she worked until August 2007 when she returned to the Philippines and applied for employment in Hong Kong instead, for which she borrowed 100,000 pesos from a friend of her mother to pay for her agency fees.

8.  On 22 November 2007 she arrived in Hong Kong to start her employment as a foreign domestic helper, and from her monthly salary she would remit her loan repayment by instalments to her creditor, but when her employment was prematurely terminated in June 2008, she returned to the Philippines to stay in her mother’s home, but as she was no longer able to make any further instalments towards her loan, and when her creditor started to make threats to her mother over her failure to repay her loan, the Applicant decided that it was no longer safe to remain in the Philippines, and so on 18 July 2008 she departed for Hong Kong where she overstayed, and upon her subsequent arrest by the police she raised a torture claim, and when it was rejected by the Immigration Department, she then lodged her non-refoulement claim for protection, for which she later completed a Supplementary Claim Form on 7 July 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

9.  By a Notice of Decision dated 25 August 2017 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all the remaining applicable grounds except for torture risk but including risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights (“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 all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from either her former boyfriend or her creditor to the Applicant 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 threats from her former boyfriend since 2004 and whom she has not seen or heard from since 2005 that it is doubtful that he would still have any adverse interest in her after all these years, that the same can be said about her creditor when there is no evidence of any threats made directly at her at all,that her problems with them were domestic or personal monetary disputes without any official involvement that state/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 102 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 former boyfriend or her creditor to locate her.

11.  On 6 September 2017 the Applicant filed an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which she attended an oral hearing on 12 April 2018 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 12 June 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

12.  In its decision the Board found no reliable evidence to support the Applicant’s claim of fear of harm from her former boyfriend whom she had not seen or heard from for more than 10 years, that her dispute with her creditor was purely a private money matter that state/police protection would be available to the Applicant, and that in any event it would not be unreasonable or unduly harsh for her to relocate to other parts of the Philippines away from her former boyfriend or her creditor that her claim for non-refoulement protection failed on all applicable grounds.

13.  On 19 June 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 repeated her claim of fear of harm in the Philippines and that she was unable to properly present her case before the Board due to her nervousness, and asked that the Board’s decision be overturned.  

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 an 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.

15.  In the present case, the Applicant did not make any further representation or elaboration of her claim at the oral hearing of her application before me despite her claim in her affirmation of not being able to do so due to her nervousness, and instead stated that anything needed to be said had already been set out in her affirmation.  As such and in the absence of any error of law or procedural unfairness either in the process of her claim or in the decision of the Board being identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

16.  Furthermore, the fact 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.

17.  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.

18.  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