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HCAL 2503/2018
[2022] HKCFI 1415
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2503 of 2018
BETWEEN
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Marquez Imelda M. |
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 56-year-old national of the Philippines who last arrived in Hong Kong in April 1995 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 21 April 1999, she did not depart and instead overstayed, and was arrested by police almost 10 years later on 25 February 2009. After she was referred to the Immigration Department for investigation, she raised a torture claim on the basis that if she returned to the Philippines she would be harmed or killed by her husband’s creditors over his outstanding gambling debts, and after her torture claim was rejected, she then sought non-refoulement protection on the same basis. She was subsequently released on recognizance pending the determination of her claim.
2. The Applicant was born and raised in Antamok Tram, Itogon, Benguet, the Philippines. After leaving school she married her husband, and raised a family with 2 children in her husband’s home district some 30 minutes walking distance from her own.
3. In 1988 she started to work in Hong Kong as a foreign domestic helper to help out with her family’s income as her husband had become addicted to gambling and was frequently in debts.
4. In 1992 the Applicant returned to the Philippines to find her husband in serious debts and was under constant threats from those gangsters operating the gambling dens over his outstanding gambling debts, and soon he left their home and disappeared to avoid their threats.
5. However, when his creditors were unable to find him, they turned their threats against the Applicant who was then forced to resume her job in Hong Kong so as to make money to repay her husband’s debts, and so she returned to Hong Kong in November 1994 to work as a foreign domestic helper again, but when her last employment was terminated in April 1999, she was afraid to return to the Philippines and therefore overstayed in Hong Kong, and after her arrest by the police in 2009, she raised her torture claim with the Immigration Department, and after it was rejected, she then sought non-refoulement protection, for which she completed a Supplementary Claim Form (“SCF”) on 3 January 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).
6. By a Notice of Decision dated 6 April 2017 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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 husband’s creditors upon her return to the Philippines as low due to the low intensity and frequency of past ill-treatment from them, that it is doubtful that they would still have any adverse interest in her after all these years, that in any event it was a private monetary dispute between her husband and his creditors 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 102 million people spread across a vast territory of more than 298,000 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’s creditors to locate her.
8. The Applicant then 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 June 2018 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 30 October 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.
9. In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of her claim of fear of harm form her husband’s creditors, that in any event it was a private monetary dispute between them without any official involvement that state/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 areas of the country away from her husband’s home district without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.
10. On 8 November 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 just stated that she reject the decision as it disregarded her dangerous situation but without providing any details or particulars or elaboration as to why or how it did so, nor was she able to put forward any proper ground for her intended challenge at the hearing of 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 been established by both the Director and the Board in their respective decision that the risk of harm in her claim if true 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 I accordingly refuse her leave application.
Dated the 13th day of May 2022.
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(TAM Kam-man)
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 13th May 2022
Marquez Imelda M.
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 13th May 2022
Torture Claims Appeal Board
Putative Respondent’s ref. no.:
USM 6859/17/4/135/F364
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 3162/16 (Formerly RBCZ 2001019/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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