MORI DELLIA SIGAYLI v. TORTURE CLAIMS APPEAL BOARD

HCAL 284/2019

[2023] HKCFI 2138

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 284 OF 2019

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;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 38-year-old national of the Philippines who last arrived in Hong Kong on 31 July 2012 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 21 June 2013, but her employment was prematurely terminated on 29 December 2012 after she was arrested by police for theft for which she was subsequently convicted and sentenced to prison for 14 days, and upon her discharge and was referred to the Immigration Department for deportation, she raised a non-refoulement claim on the basis that if she returned to the Philippines she would be harmed or killed by her former boyfriend for refusing to marry him.  She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in San Pedro, Davao City, the Philippines.  After leaving school she worked as a saleslady in Lucena City where she met her former boyfriend and started their relationship.

3.  In 2009 the Applicant first came to Hong Kong to work as a foreign domestic helper, and maintained her relationship with her boyfriend by telephone and the internet.

4.  In May 2011 upon completing her employment in Hong Kong, the Applicant returned to Lucena City where she cohabited with her boyfriend who planned to marry her in September of the same year.     

5.  However, the Applicant subsequently had a change of mind about their relationship upon discovering her boyfriend’s drinking habit and abusive behavior towards her that she decided to end their relationship by leaving him to move to her brother’s place, but when her boyfriend kept demanding for her return and to go through their planned marriage in September 2012, the Applicant fled to Manila, and on 31 July 2012 she departed the Philippines for Hong Kong to resume working as a foreign domestic helper, during which her boyfriend would make threatening phone calls to her, and when her employment was subsequently terminated, she was afraid to return to the Philippines, and so she overstayed in Hong Kong and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 15 December 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

6.  By a Notice of Decision dated 29 January 2015 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 former boyfriend upon her return to the Philippines as low due to the absence of or low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of him to seriously harm or kill her or that he would still have any adverse interest in her after all these years since she last left the country in 2012, that in any event it was a private relationship dispute between the 2 of 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 107 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 former boyfriend to locate her.

8.  On 11 February 2015 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended 2 oral hearings on 15 and 22 December 2016 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 17 January 2019 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 fear of harm from her former boyfriend for refusing to marry him and for putting an end to their relationship but found no evidence of any real intention of her former boyfriend to seriously harm or kill her so as to force her back into their relationship or that he would still have any adverse interest in her after all these years since she last left the country, that in any event it was a private relationship dispute between the 2 of them without any official involvement that state or police protection would be available to the Applicant upon her return to the Philippines as well as reasonable internal relocation for her to move safely to other part of the country away from her home district without any risk of being located by her former boyfriend that her claim for non-refoulement protection failed on all applicable grounds.    

10.  On 30 January 2019 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 her supporting affirmation of the same date in which she just stated that she rejects the decision as it disregarded her dangerous situation but without providing any further details or particulars as to how it did so or putting forth any proper ground for her intended challenge, nor was she able to do so at the hearing of her application other than just repeating her claim as before that it is still dangerous for her to return to her home country.  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 been correctly established by both the Director and the Board in their respective decision that the risk of harm in her claim if real 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.                

13.  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.

14.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and 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