FRANCIA NERRY VELASCO v. TORTURE CLAIMS APPEAL BOARD

HCAL 2116/2018

[2020] HKCFI 2467

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2116 of 2018

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;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 41-year-old national of the Philippines who last arrived in Hong Kong on 13 June 2014 with the intention to continue with her then employment contract as a foreign domestic helper, but when she was informed that her contract had been terminated and that she was allowed to stay only as a visitor up to 27 June 2014 when she did not depart and instead overstayed, and on 18 October 2016 she surrendered to the Immigration Department and subsequently raised a non-refoulement claim on the basis that if she returned to the Philippines she would be harmed or killed by the mayor’s son of her home district for having witnessed a crime committed by him. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Himanag, Lagonoy Camarines Sur, Bicol, the Philippines. After leaving school she worked in various jobs and remained residing in her home district.

3.  One night in March 2007 while she was on her way home from town, she heard and saw one of her friends being assaulted and raped by Jayvee Pilapil (“JP”), the son of the town mayor, and when JP spotted her, the Applicant immediately ran home and told her mother, who then advised her to leave home to hide in a relative’s place.

4.  However, one evening in April 2007, JP and his men came looking for her and attacked her with a knife but was stopped by her boyfriend so that she could make her escape to her sister’s place in Manila.    

5.  As she was still fearful for her life, the Applicant therefore decided to leave the Philippines by applying to work as a foreign domestic helper in Hong Kong, which she eventually did later in 2007, returning to the Philippines only during her vacation, but on her last trip to Manila in 2014, she heard that JP was still looking for her everywhere, and upon her return to Hong Kong in June 2014 when she was told of the termination of her last employment contract, she overstayed and subsequent raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 12 April 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.              

6.  By a Notice of Decision dated 31 May 2017 the Director of Immigration (“the 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 JP upon her return to the Philippines as low due to the low intensity and frequency of past ill-treatment from him, 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”) 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 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 JP to locate her.

8.  On 7 June 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the decision of the Director, and for which she attended an oral hearing on 21 August 2018 before the Board during which she gave evidence and answered questions put to her by the Adjudicator for the Board. On 26 September 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board accepted the Applicant’s claim of having witnessed a crime committed by the mayor’s son but doubted her alleged fear of harm from him given that she had returned to the Philippines on three occasions over her years of employment in Hong Kong, and that in any event in the absence of any state or 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 area away from her home district without any risk of being located by the mayor’s son that her claim for non-refoulement protection failed on all applicable grounds.   

10.  On 4 October 2018 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for her intended challenge:

(1) Misdirection in law in taking into account that the Applicant had to have experienced torture in the past in order to establish substantial grounds to believe that there was a risk of torture in the future;

(2) Procedural impropriety/unfairness in the Adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of her claim;

(3) Irrationality in the Adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of her claim;

(4) Irrationality in the Adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in the Philippines;

(5) Irrationality in the Adjudicator’s failure to analyze and assess whether state protection exists in the Philippines and misdirected himself as to the extended meaning of state protection;

(6) Irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(7) Procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the Applicant;

(8) Procedural impropriety/unfairness in the Adjudicator applying the incorrect standard of proof in his decision; and

(9) Procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the Applicant resulting in unfair procedure.  

11.  All these however appear to me just standard pro forma grounds commonly used in this type of applications which are wholly irrelevant to the Applicant’s case, or are just broad and vague assertions of hers containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to her case or how the Board or the Adjudicator had erred in the decision, or in what way did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in her case, or in what way was her legal representation from her assigned lawyer insufficient. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant. As such 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 of them reasonably arguable 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.  The only other complaint which the Applicant appeared to have made with any elaboration was about the hearing bundle being provided to her only a few days before her appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given her insufficient time to prepare for her appeal.

14.  Even if it is true that the hearing bundle indeed came to her late as alleged, and the Applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including her NCF, records of her screening interviews and the Director’s decision should be well familiar to the Applicant as they had earlier all been made available to her when she still had legal representation, whilst her NCF was completed on her own instructions with legal assistance, and that at her oral hearing she never raised any issue or requested the Adjudicator for further time to enable her to better prepare for her appeal. Accordingly I do not find anything amiss arising from the hearing bundle for the Applicant in her appeal before the Board.

15.  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 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.                

16.  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.

17.  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