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HCAL 957/2018
[2021] HKCFI 1361
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 957 of 2018
BETWEEN
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Bolencis Edna Beltiar |
Applicant |
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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 51-year-old national of the Philippines who last arrived in Hong Kong on 26 December 2012 with permission to work as a foreign domestic helper until the expiration of her employment contract on 8 January 2013 or within 14 days of its early termination, but on 5 February 2013 she was arrested by the police for some criminal offence for which she was subsequently convicted and sentenced to prison for 2 months, and upon her discharge from prison 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 creditors for failing to repay her loans. She was subsequently released on recognizance pending the determination of her claim.
2. The Applicant was born and raised in General Tinio, Nueva Ecija, the Philippines. After leaving school she worked in various odd jobs until 1997 when she went to Singapore to work as a domestic helper, and starting in 2003 she came to Hong Kong to work as a foreign domestic helper, returning home in the Philippines to visit her mother only during holidays.
3. Between 2010 and 2013 while she was on holiday back home in the Philippines, she had on separation occasions borrowed loans from a local couple to meet her mother’s medical expenses and for rebuilding her family’s house damaged after a typhoon, with the loans repayable by monthly instalments.
4. Upon her return to Hong Kong to continue with her employment, the Applicant would make monthly repayments to her creditors, but after she was arrested by the police and lost her employment in Hong Kong, she was unable to make any repayments towards her loans, and when her family later told her that her creditors had sent men to her home in the Philippines looking for her with threats to kill her when she returned to the Philippines, she therefore raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 12 July 2017 and attended a screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).
5. By a Notice of Decision dated 27 July 2017 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 all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that she would be in danger of being harmed or killed by her creditors upon her return to the Philippines due to the absence of any past ill-treatment from them, that in the absence of 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”) shows 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 parts of the Philippines away from her home district in large cities such as Manila where it would be difficult if not impossible for her creditors to locate her.
7. On 4 August 2017 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 16 March 2018 before the Board during which she gave evidence and answered questions put to her by the Adjudicator for the Board. On 24 May 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 changed her evidence that those loans were in fact borrowed by her mother and brother and that she only assisted them with their repayments and hence there is no evidence of any threats directly from the creditors against her, and that in any event in the absence of any evidence of any official involvement that state/police protection would be available to her upon her return to the Philippines as well as reasonable internal relocation for her to move safely to other areas away from her home district without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.
9. On 28 May 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 affidavit of the same date she merely attached a copy of the decision and the documents from her hearing bundle for her appeal before the Board but without putting forward any proper ground for her intended challenge, nor could her do so at the hearing of her application when she merely repeated her claim that she still has problems in 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.
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 the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other parts 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 May 2021.
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(MAK Sze-ki)
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 May 2021
Bolencis Edna Beltiar
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 May 2021
Torture Claims Appeal Board
Putative Respondent’s ref. no.:
USM 8026/17/8/64/F413
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1453/17 (formerly RBCZ 3001308/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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