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HCAL 2534/2018
[2021] HKCFI 2306
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2534 of 2018
BETWEEN
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Tarampi Gasat Agnir |
Applicant |
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and |
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Torture Claims Appeal Board |
Putative Respondent |
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and |
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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.
Observations for the Applicant:
1. The Applicant is a 44-year-old national of the Philippines who last arrived in Hong Kong on 24 August 2014 with permission to continue to work as a foreign domestic helper until the expiration of her then employment contract or within 14 days of its early termination, but when it was prematurely terminated in October 2014, she did not depart and instead overstayed, and on 1 December 2015 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 and/or his creditor for refusing to assist him in repaying his debts. She was subsequently released on recognizance pending the determination of her claim.
2. The Applicant was born and raised in Barangay, San Francisco Sarrat, Ilocos Norte, the Philippines. After leaving school, she married her husband who was a bus driver, and raised a family of 4 children.
3. In 2009 the Applicant took up employment in Hong Kong as a foreign domestic helper, and during one of her returns to the Philippines for her vacation in January 2013, she learnt that her husband had borrowed a loan from a local loan shark for his drug addiction, and during which his creditor came to their house to warn them of the serious consequences of any default with her husband’s loan repayment, and afterwards when her husband demanded her to assist him with his loan repayment, they broke into a heated quarrel during which her husband beat her and cut her arm with a knife, and threatened to kill her if she failed to do as he demanded before running away. As the Applicant became fearful for her life, she therefore flew back to Hong Kong to continue with her employment.
4. Thereafter the Applicant had no further contact with her husband, but as she heard from her family that he had been repeating his threats to kill her, she was therefore still fearful of being harmed or killed by him or his creditor in the Philippines, and hence when her last employment contract was prematurely terminated in October 2014, she did not depart and overstayed in Hong Kong, and subsequently raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 1 February 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).
5. By a Notice of Decision dated 28 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”).
6. In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that the claimed future risk of harm from her husband or his creditor upon her return to the Philippines due to the absence of or low intensity and frequency of past ill-treatment from them, that it was a private monetary 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 (“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 working experience to move to other part of the Philippines away from her home district in large cities such as Cebu City where it would be difficult if not impossible for her husband or his creditor to locate her.
7. The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 12 June 2018 before the Board during which she gave evidence and answered questions put to her by the Adjudicator for the Board. On 25 October 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.
8. In its decision the Board found the Applicant to have failed to establish that the claimed threats from her husband or his creditor are likely to materialize or to show substantial grounds for believing that she would be in danger of being subjected to harm or ill-treatments if returned to the Philippines, and that even if there were such a risk that it arose from some domestic or private monetary dispute without any official involvement that state/police protection would be available to the Applicant upon her return to the Philippines as well as reasonable internal relocation for her to safely move to other area away from her home district that her claim for non-refoulement protection failed on all applicable grounds.
9. On 12 November 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 rejects the decision as it disregarded her dangerous situation but without putting forth any proper ground for her intended challenge, nor did she request any oral hearing for 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.
10. 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: 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.
11. In the Applicant’s case, 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 her 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.
12. 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.
13. 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 12th day of August 2021
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(Allen LEE)
for Registrar, High Court |
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: |
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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)). |
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Sent to the Applicant on 12th August 2021
Tarampi Gasat Agnir
Applicant’s ref. no.:
Nil |
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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 12th August 2021
Torture Claims Appeal Board
Putative Respondent’s ref. no.:
USM 10802/18/3/254/F645
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 3853/17 (formerly as RBCZ 10310/17)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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