PACURZA KEMBERLY BIBAT v. TORTURE CLAIMS APPEAL BOARD

HCAL 1131/2023

[2024] HKCFI 1748

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1131 OF 2023

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 / the Applicant being absent in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 28-year-old national of the Philippines who last arrived in Hong Kong on 6 September 2019 with permission to continue to work as a foreign domestic helper until the expiration of the employment contract on 10 April 2021 or within 14 days of its early termination, but when her employment was prematurely terminated on 31 March 2021, she did not depart and instead overstayed, and on 27 January 2022 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 her creditor over her unpaid debts and/or by her husband over her extra-marital affair with another man in Hong Kong and/or prosecuted by the Filipino police or authorities for the offence of bigamy. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Barangay San Rafael, East San Nicolas, Pangasinan, the Philippines. After leaving school she worked as a waitress to make her living, got married and raised a family with 2 children in her home district.

3.  In 2018 she applied to work in Hong Kong as a foreign domestic helper, and in order to meet the necessary expenses she borrowed a loan from a local finance company to be repayable within 18 months and with monthly interest payments.

4.  In April 2019 she came to Hong Kong to start her first employment as a foreign domestic helper, and remitted money from her salaries every month to her husband in the Philippines to help her to repay her loan.

5.  However, in early 2020 she was told by her mother in the Philippines that her creditor had sent letters demanding her to repay her loan as her husband had failed to repay her loan on her behalf after spending all her remittances on himself instead, and after her last employment was prematurely terminated in March 2021, she was afraid to return to the Philippines and therefore overstayed in Hong Kong, during which she had an affair with another man and became pregnant with a child, of which she also feared of being harmed or killed by her husband or prosecuted by the Filipino police or authorities of bigamy when she returned to the Philippines, and so on 27 January 2022 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 25 August 2022 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 13 October 2022 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 her creditor or her husband upon her return to the Philippines as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any intention of either of them to harm or kill her other than unsubstantiated hearsays or her own speculations, nor is there any evidence of any adverse interest of the Filipino police or authorities in her or to prosecute her for bigamy given that she has not married anyone else in Hong Kong or otherwise other than her own husband, that in any event these were private monetary or domestic disputes between the Applicant and her creditor and her husband 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 114 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 Manila where it would be difficult if not impossible for her creditor or her husband to locate her.

8.  On 24 October 2022 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 15 May 2023 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 15 June 2023 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board accepted the Applicant’s claim of monetary dispute with her creditor but found no evidence of any threats from the finance company or any intention of them to harm or kill her over her unpaid debts, nor is there any evidence of any threats from her husband over her extra-marital affair with another man in Hong Kong given her own affairs with other women and the long separation between them, nor is there any adverse interest of the Filipino authorities in the Applicant over any offence of bigamy since she has not married any other man in Hong Kong, and that in any event these were private monetary or domestic disputes between her and her creditor or husband without any official involvement that state or police protection would be available to the Applicant upon her return to the Philippines if resorted to that it concluded that she has failed to establish any risk that she will face under any of the proscribed harm upon her return to the Philippines that her claim for non-refoulement protection failed on all applicable grounds.

10.  On 7 July 2023 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 or in her supporting affirmation of the same date in which she just repeated her claim as before but without putting forth any proper ground for her intended challenge, nor did she indicate any request for an 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.

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: 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.

12.  In the Applicant’s case, the fact is that it has also been established by the Director in his decision that the risks of harm in her claim if real are localized ones and that it is not unreasonable or unsafe for her to relocate to other part of the Philippines, a decision also agreed and 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.

13.  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.  Moreover, the Applicant recently on 8 May 2024 filed an affirmation requesting to withdraw her application but without providing any reasons or explanations as to what have happened to her claimed problems in her home country.

15.  In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I refuse to grant leave and accordingly dismiss her 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