PEREZ MARICEL FABITO v. TORTURE CLAIMS APPEAL BOARD

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 be refused.

Observations for the Applicant:

1.  The Applicant is a 44-year-old national of the Philippines who last arrived in Hong Kong on 7 April 2019 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract or within 14 days of its early termination, but when her last employment was prematurely terminated on 14 December 2019, she did not depart and instead overstayed, and on 13 January 2020 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.  

2.  The Applicant was born and raised in Barangay Sapang, Sta Barbara, Pangasinan, the Philippines. After leaving school she cohabited with her boyfriend and raised a family with 4 children in her home district.

3.  In 2008 in order to help support the family the Applicant went to Dubai to work as a domestic helper until 2013 when she returned to the Philippines.

4.  However, soon she discovered that her boyfriend had become addicted to gambling and drugs, and so to help ease the family’s financial burden she in 2015 applied to work as a foreign domestic helper in Hong Kong, and in order to pay for the agency fees and other necessary expenses, she borrowed a loan from a local money-lender to be repaid within 13 months and with monthly interests payments, and so in December 2015 she arrived in Hong Kong to start her employment, and thereafter remitted part of her monthly salary to her family in the Philippines for her loan repayments.

5.  In March 2019 when she returned to her home district for holiday, she was threatened by her creditor over her outstanding debts, of which she later found out that her boyfriend had spent away her monthly remittances instead of applying them on repaying her loan, and so the Applicant decided to leave her boyfriend and put her children in the care of her parents before returning to Hong Kong to continue with her employment.     

6.  However, after her last employment was prematurely terminated on 14 December 2019, she was afraid to return to the Philippines due to the threats from her creditor, and therefore overstayed in Hong Kong, and subsequently raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 11 March 2020 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

7.  By a Notice of Decision dated 3 April 2020 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”).

8.  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 and followers upon her return to the Philippines as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of her creditor to seriously harm or kill her other than to press her to repay her debts, that in any event it was a private monetary dispute between her and her creditor only 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 109 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 to locate her.

9.  On 14 April 2020 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 13 July 2020 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 20 July 2020 her appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision[1] the Board accepted the Applicant’s claim of fear of harm from her creditor over her unpaid debts that caused her to overstay in Hong Kong to seek protection, but found no reliable evidence of any real intention of her creditor to seriously harm or kill her other than to press her to repay her debts, and that in any event it was a private monetary dispute between her and her creditor only 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 alternatives for her to move safely to other parts of the country away from her home district without any risk of being located by her creditor that her claim for non-refoulement protection failed on all applicable grounds.    

11.  On 23 July 2020 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and put forward various grounds for her intended challenge, of which she confirmed at the hearing as below:

(1)  That the Board reached the decision wrongly in assessing her non-refoulement claim as the decision was not fair or reasonable;

(2)  That the Board failed to assess her claim as required by the Wednesbury test in failing to recognize that her life must be protected by the criminal law from extra-judicial killings that she may face if deported back to her home country.

12.  These are however just some bare and vague assertions of the Applicant containing a few key words or phrases but without any relevant or necessary particulars or specifics or elaborations as to how they apply to her case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable, or what relevancy were extra-judicial killings to the Applicant’s case when on the factual basis of even her own case that it was a private monetary dispute between her and her creditor only without any official involvement or political element at all. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for her intended challenge.

13.  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.

14.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in the Applicant’s 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.                

15.  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.

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