SERIL NUHWEEME GUMARAD v. TORTURE CLAIMS APPEAL BOARD

HCAL 2147/2018

[2022] HKCFI 2495

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2147 of 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of documents only;          or
	consideration of documents and oral submissions by (counsel for) 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 32-year-old national of the Philippines who arrived in Hong Kong on 26 January 2014 as a visitor with permission to remain up to 9 February 2014 when she did not depart and instead overstayed, and more than 1 ½ years later on 3 November 2015 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 uncle over some stabbing incident.  She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born in Mangatarem, Pangasinan, the Philippines and later moved with her parents to Dibay, Calayan, Cagayan Province. After leaving school she worked as a nanny and lived with her mother in her home village.

3.  One day in March 2012 after her birthday celebration, she was raped by her uncle who afterwards threatened her not to tell anyone or else he would kill her and her mother. For the next two years her uncle would continue to rape and abuse her from time to time causing her great shame and distress.

4.  By late 2013 the Applicant found herself unable to tolerate such abuses any further, and so on one occasion when her uncle again tried to rape her that she stabbed him with a knife in defense and then fled from the scene for home.

5.  Upon returning home the Applicant told her mother of the incident, and together they made a report to the local police, but was told that her uncle had not made any complaint to the police that they would not bother to investigate the matter and told them to go home.

6.  As they were fearful that her uncle would later take revenge against them, the Applicant and her mother moved out of their home village, with her mother moving back to Mangatarem to be with her son, while the Applicant fled to Carig Norte, Tuguegarao City to take shelter in a friend’s place, and on 26 January 2014 she departed the Philippines for Hong Kong where she overstayed and subsequently raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 9 October 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.  By a Notice of Decision dated 7 December 2017 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 uncle upon her return to the Philippines as low due to the low intensity and frequency of past ill-treatment from him, that there was no attempt by him to take any further action against her after the stabbing incident to suggest any intention of him to harm or kill her in future, that in any event in the absence of any official involvement that state or police protection would be available to the Applicant upon her return to the Philippines 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 104 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 or Cebu where it would be difficult if not impossible for her uncle locate her.

9.  On 13 December 2017 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 23 May 2018 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 27 September 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

10.  In its decision the Board accepted the Applicant’s evidence as to her claim of being raped and abused by her uncle and her subsequent stabbing of him in self-defense but found no evidence of any attempt by her uncle to harm her since the stabbing incident to suggest any future risk from him, and that in any event in the absence of any official involvement that state/police protection would be available to her upon her return to the Philippines as well as reasonable internal relocation for her to safely move to other area away from her home district without any risk of being located by her uncle that her claim for non-refoulement protection failed on all applicable grounds.

11.  On 8 October 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 or in her supporting affidavit of the same date in which she just stated that she rejects the Board’s decision as it disregarded her dangerous situation but without providing an details or particulars or elaboration as to how it did so or any other 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.

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 her 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 fact is that it has been correctly 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.

14.  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.

15.  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