CUNANAN BELLA SAMILING v. IMMIGRATION DEPARTMENT

HCAL 505/2018

[2020] HKCFI 1707

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 505 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 58-year-old national of the Philippines who had been allowed to work as a foreign domestic helper in Hong Kong since 1997 subject to the terms and conditions of her employment contract, but when her last contract was prematurely terminated on 8 June 2016, she did not depart and instead overstayed until 12 July 2016 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 her husband for pledging his property to the bank for a loan without his knowledge and for causing him to lose his property on foreclosure to the bank after she failed to repay her loan.  She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Fugu, Echague Municipality, Isabela Province, the Philippines.  After leaving school, she married her husband and raised a family of four children, and in 1997 started to come to work as a foreign domestic helper in Hong Kong, returning home only during her holidays. As her husband had been out of job most of the time, she therefore became the breadwinner of their family.

3.  In or about 2000/2001 when she returned to the Philippines for holiday, and as she needed money to pay for her children’s college expenses, she borrowed a loan of 35,000 pesos (about HK$5,400) from the Rural Bank of Neuva Ecija by charging their house which was in her husband’s name to the bank as collateral, with repayment within one year with interest payable per month.  Thereafter she returned to work in Hong Kong.

4.  However, as she needed all her monthly income to meet her family’s expenses, she did not make any repayments to the bank for her loan, and one day in 2002 she received a phone call from her husband in the Philippines threatening to divorce her and to kill her as the bank had foreclosed his house as a result of her failure to repay her loan.  Fearing for her life she therefore cut off all her contact with her husband whom she had not heard of since, and during her subsequent trips back to the Philippines for holiday, she did not go home and instead only stayed in her friend’s place without ever seeing her husband. 

5.  On 8 June 2016 her last employment contract was prematurely terminated, but she did not depart for the Philippines as she was still fearful of being harmed or killed by her husband, she therefore overstayed in Hong Kong, and on 12 July 2016 she surrendered to the Immigration Department and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 6 December 2017 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 December 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 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 claims and found her alleged fear of harm from her husband upon her return to the Philippines over her bank loan and the subsequent foreclosure of his property entirely fictitious and incredible, but that even if they were true that there was no evidence that she had ever been physically abused by her husband other than a threatening phone call more than 10 years ago, that in any event it was a private family 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 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 part of the Philippines away from her home district in large cities such as Quezon City where it would be difficult if not impossible for her husband to locate her.

8.  On 8 January 2018 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 6 August 2018 before the Board during which she gave oral evidence and answered questions put to her by the adjudicator for the Board.  On 24 September 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 evidence on her claim confused, evasive, internally inconsistent and unbelievable in particularly as to her alleged loan from the bank and their dealings regarding her husband’s property that it entirely rejected her claim of fear of being harmed or killed by her husband upon her return to the Philippines that her claim for non-refoulement protection failed on all applicable grounds.    

10.  However, before she even received the decision on her appeal from the Board, the Applicant earlier on 28 March 2018 filed a Form 86 for leave to apply for judicial review of the Director’s decision without putting forward any ground for seeking relief in the Form, and in her supporting affidavit of the same date she merely stated that she would like to appeal against the decision as the Director disregarded her problems and danger in her home country without providing any particulars or elaborations as to how it was so, nor did she request any oral hearing for her application.

11.  As it has been held by the Court of Appeal in Re Moshin Ali [2018] HKCA 549, that the decision of the Director is no longer susceptible to judicial review once an appeal to the Board is pursued by a non-refoulement claimant, as the Applicant did in her case, in which the Director’s decision has already been superseded by the Board’s decision which represents the final decision on such claim at the end of its proceedings under the Unified Screening Mechanism (“USM”), it is therefore not open to the Applicant to challenge the Director’s decision if that was her intention when she filed her Form 86 on 28 March 2018.      

12.  Given my understanding that the Applicant has not filed another Form 86 for leave to apply for judicial review of the Board’s decision, on my instruction a letter dated 24 April 2020 was sent to the Applicant to enquire whether it is in fact her intention to challenge the Board’s decision in her Form 86, but that as she was by then no longer represented by DLS that she might have prematurely filed her Form 86 before the Board delivered its decision, and requested her to submit any additional grounds or representation within 14 days for her intended challenge of the Board’s decision.       

13.  The Applicant did not respond to that letter.  In the circumstances and to save time and costs, I propose to deal with her application now before me as if it is for leave to apply for judicial review of the Board’s decision, and proceed to consider its merits if any.

14.  As noted above, the Applicant has not put forward any proper or valid ground for her intended challenge, and having considered the Board’s decision with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in her process before the Board or in its decision, nor any failure on the adjudicator to apply high standards of fairness in the consideration and assessment of the Applicant’s claim.

15.  Essentially her claim was rejected by the Board on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 12 – 83 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim during her appeal hearing, 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 find any reasonably arguable basis for her to challenge the finding of the Board.

16.  Furthermore, the fact that it has been established by the Director in his decision that the risk of harm from her husband 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, a decision also confirmed by the Board, 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 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