HCAL 446/2018
[2019] HKCFI 423
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 446 of 2018
BETWEEN
Salas Iris Joy Gonzales
Applicant
and
Torture Claims Appeal Board/
Putative Respondent
and
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.
Observation for the Applicant:
1. The applicant is a 39-year-old national of the Philippines who arrived in Hong Kong on 14 June 2011 with permission to remain as a visitor up to 28 June 2011 when she did not depart and instead overstayed until 10 September 2015 when she 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 some members of the terrorist group the New People’s Army (“NPA”) for having witnessed a murder committed by them. She has since been released on recognizance pending the determination of her claim.
2. The applicant was born and raised in Oco, Viga, Catanduanes, the Philippines. After leaving school she worked as a vegetable supplier and got married with four children.
3. One early morning on 25 January 2011 while her family members were still sleeping, the applicant wandered into her backyard to pick some limes as treatment for her son’s cough, she heard the voice of a man pleading for his life, and when she went up to the bush she saw a man on his knees pleading to several men with guns whom she did not recognize except DM who was from the same village and a member of NPA. The applicant was frightened and was retreating back towards her house when she heard a gunshot behind her. Upon returning home she told her husband what she saw and was told to keep quiet about it.
4. On the following day she told her sister-in-law of what she saw, and was again advised not to tell anyone else. However, some weeks later she was approached by a woman claiming to be the wife of the victim shot in the incident asking her to go to the police to assist in their investigation, but at the same time she also received threats from DM that she would be killed if she dared to be a witness to the shooting.
5. Feeling pressure from both sides and fearing for her own safety, the applicant decided to leave the Philippines, which she did on 14 June 2011 for Hong Kong and overstayed until 10 September 2015 when she surrendered to the Immigration Department and raised her non-refoulement claim, for which she later completed a Non-refoulement Claim Form on 17 January 2017 and attended screening interview before the Immigration Department with legal representation form the Duty Lawyer Service.
6. By a Notice of Decision dated 15 February 2017 the Director of Immigration (“the 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 his 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”).
7. 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 DM and his associates to the applicant upon her return to the Philippines as low due to the absence or low intensity and frequency of past ill-treatment from them, that it is doubtful that after all these years that they would still have any adverse interest in her, that in the absence of 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 101 million people spread across a vast territory of more than 298,170 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 away from her home district such as where it would be difficult if not impossible for DM and his men to locate her.
8. On 23 February 2017 the applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which she attended an oral hearing on 15 January 2018 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board. On 13 March 2018 her appeal was dismissed by the Board which also confirmed the Director’s decision.
9. In its decision the Board found the applicant’s account of her claim of fear of harm from DM and his men vague, inconsistent and contradictory that strongly indicate that her claim was fabricated, that it was in the circumstances incredible that she had never been approached by the police for investigation if indeed she did witness a murder, and the fact that she did not immediately seek protection upon arriving in Hong Kong until more than four years later was also strongly indicative that she came to Hong Kong for reasons other than that she genuinely feared harm in the Philippines, and concluded that she had fabricated her claim which 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 grounds for relief was given in the Form or in her supporting affirmation of the same date in which she merely exhibited copies of the previous decisions and documents from her appeal bundle before the Board, whilst in her written submission dated 5 September 2018 she simply regurgitated her claim as before that her problems back home had not yet been resolved, and that the Court should give its utmost reconsideration of her claim.
11. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim, as 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 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 Re Litoun Mounsy [2018] HKCA 537 .
12. In the present case, the Board rejected the applicant’s claim based on its adverse finding as to her credibility on the evidence and information available to the Board and with the benefit of hearing her in evidence at the hearing. In the absence of any grounds put forward by the applicant or any error identified by her in the decision, and having considered the decision with rigorous examination and anxious scrutiny, I do not find any reasonably arguable basis to challenge the findings of the Board.
13. Furthermore, the fact that it has been established by the Director in his 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.
14. 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.
15. 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 31st day of May 2019.
(NG Ka-wing)
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:
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)).
Sent to the Applicant on 31 May 2019
Salas Iris Joy Gonzales
Applicant’s ref. no.:
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 31 May 2019
Torture Claims Appeal Board/ Non-Refoulement Claims Petition Office
Director of Immigration
Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)
Form CALL-1