ALCARAZ NORA ARID v. TORTURE CLAIMS APPEAL BOARD /NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 577/2018

[2020] HKCFI 1894

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 577 of 2018

     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 refused.

Observations for the Applicant:

1.  The Applicant is a 62-year-old national of the Philippines who last arrived in Hong Kong on 10 February 2010 with permission to work as a foreign domestic helper until the expiration of her employment contract on 31 December 2011 or within 2 weeks of its early termination, but when it was prematurely terminated on 14 February 2011 she did not depart and instead overstayed until 17 June 2015 when 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 abusive husband for disapproving his drug abuse and/or by the drug syndicate which supplied drugs to him.  She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Pangasinan, the Philippines.  After leaving school she married her husband in 1975 and raised a family of three children in Baguio City.

3.  Her husband worked as a construction worker but soon the Applicant discovered that he was a drug addict, and when she tried to persuade him to stop taking drugs he would lose his temper by pushing and slapping and punching her regularly.  Later when she heard that he was also dealing in illegal drugs supplied by the local drug syndicate, she intended to report it to the police, but when he threatened her that the drug syndicate would kill her, she did not go to the police but decided to stay away from her husband and the drug syndicate by leaving the Philippines for Bahrain in 1986 to work as a domestic servant before eventually coming to Hong Kong in 2002 to work as a foreign domestic helper, returning to her home in the Philippines only for home leave.

4.  In December 2008 when she returned to the Philippines for home leave, she was again hit by her husband who was high on drug that she decided to leave him and their marriage for good, and during her next home leave in January 2010 she did not return to her home in Baguio City and instead stayed in her friend’s place in Laguna, and upon her subsequent return to Hong Kong in February 2010, she ceased all her contact with her husband and has not heard from him since.

5.  However, when her last employment contract was prematurely terminated on 14 February 2011, she did not depart Hong Kong for fear of being harmed or killed by her husband or the drug syndicate upon her return to the Philippines, and on 17 June 2015 when she surrendered to the Immigration Department, she raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form on 27 July 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.     

6.  By a Notice of Decision dated 29 August 2016 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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 husband or the drug syndicate 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 on the part of the drug syndicate to harm or kill her, that her problems with her husband were private domestic disputes 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 show that reasonable internal relocation alternatives are available in the Philippines with a large population of 100 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 Manila where it would be difficult if not impossible for her husband or the drug syndicate to locate her.

8.  By a Notice of Further Decision dated 28 September 2017 the Director again rejected the Applicant’s claim in the absence of any additional facts which may be relevant to her non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

9.  By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 8 September 2016, and for which she attended an oral hearing on 2 February 2018 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 27 March 2018 her appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.  In its decision the Board found the Applicant’s evidence of her alleged fear of harm from her husband or the drug syndicate inconsistence, conflicting and exaggerating that it did not accept that she has any well-founded or genuine fear of harm from her husband or the drug syndicate, that in any event any problems she might have with her husband or the drug syndicate were private personal matters without any official involvement that state/police protection would be available as well as reasonable internal relocation available for her to move safely to many other places in the Philippines away from her home district without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.      

11.  On 9 April 2018 the Applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in her Form, and in her supporting affidavit of the same date she merely attached copies of those decisions and other relevant documents but without putting forward any proper ground for her intended challenge, nor did she request any oral hearing.  As such and in the absence of any error of law or procedural unfairness in her process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge.

12.  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.

13.  In the Applicant’s case, the Board rejected her claim essentially on its adverse finding on her credibility as to her alleged fear of harm from her husband or the drug syndicate for the thorough and detailed analysis and reasoning set out in paragraphs 10 – 19 of its decision with the benefit of hearing her oral evidence and answers to questions raise of her claim during her appeal hearing, and in the absence of any error of law 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 to challenge the finding of the Board.

14.  Furthermore, 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 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 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.

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