BALUBAL MELANIE CADANG v. TORTURE CLAIMS APPEAL BOARD

HCAL 1119/2024

[2024] HKCFI 2200

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1119 OF 2024

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 / the Applicant being absent in open court;

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 42-year-old national of the Philippines who last arrived in Hong Kong on 25 May 2017 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 25 May 2019 or within 14 days of its early termination, but when her employment was prematurely terminated on 15 July 2017, she did not depart and instead overstayed, and was arrested by police on 4 December 2017. After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim for protection on the basis that if she returned to the Philippines she would be harmed or killed by a fellow villager who blamed her for his loss in an local election in their village.

2.  The Applicant was born and raised in Village Centro Solana, Cagayan Valley, the Philippines. After leaving school she worked in various odd jobs in her home village to make her living.

3.  In 2008 during a local election in her home village, the Applicant volunteered to work as a coordinator for one of the candidates Mr De Asis (“DA”), but after losing the election, DA was furious and blamed the Applicant for not doing her job properly, and one night came to her home with his followers to shout abuses at her, and when the Applicant was afraid to come out, DA threatened that if he saw her again in the village he would shoot her with his gun before he left with his followers.

4.  As a result the Applicant became fearful for her life and fled to Quezon City to take shelter in a friend’s place, and then went to Manila where she worked as a domestic helper.

5.  Later in 2013 when she was told by her mother that DA and his followers had kept coming to her home in her home village looking for her, the Applicant felt it was no longer safe to remain in the Philippines, and so she applied to work in Hong Kong as a foreign domestic helper, which she subsequently did in the same year of 2013, but after her last employment was terminated in July 2017, she was afraid to return to the Philippines and therefore overstayed in Hong Kong, and upon her arrest by the police she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 16 March 2024 and attended screening interview before the Immigration Department with legal representation.

6.  By a Notice of Decision dated 10 April 2024 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 DA upon her return to the Philippines as low due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of DA to seriously harm or kill her other than just some empty threats uttered out of anger for losing the election that it is not accepted that he would still have any adverse interest in the Applicant all these years since 2008, that in any event it was a private dispute between the 2 of them 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 116 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 Davao or Cebu City where it would be difficult if not impossible for anyone to locate her.

8.  On 23 April 2024 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 14 June 2024 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 21 June 2024 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board found no reliable evidence of any real intention of DA to seriously harm or kill her other than just some empty threats uttered out of anger for losing his election, and that in any event even if such risk were real that it arose from some private dispute between the 2 of them only without any official involvement that state or police protection would be available to the Applicant upon her return to the Philippines if resorted to 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 that her claim for non-refoulement protection failed on all applicable grounds.

10.  On 15 July 2024 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 to which she only attached a copy of the Board’s decision without putting forth any proper ground for her intended challenge, nor did she request any oral hearing for 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 decisions 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.  In the premises, as I am for the given reasons 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