GABRERA NEDELYN ESMANA v. TORTURE CLAIMS APPEAL BOARD

HCAL 1576/2019

[2024] HKCFI 1186

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1576 OF 2019

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 64-year-old national of the Philippines who last arrived in Hong Kong on 6 April 2008 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 5 December 2009 or within 14 days of its early termination, but when her employment was prematurely terminated on 10 January 2009, she did not depart and instead overstayed, and more than 7 years later on 15 July 2016 she surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if she returned to the Philippines she would be harmed or killed by her husband and/or his creditors for failing to give him money to repay his debts. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Paranaque, Rizal, the Philippines. After leaving school she worked as a saleslady, married her husband and raised a family with 4 children in his home district in Guadalupe, Cebu City before later moving their family to Cadiz City.

3.  In 1996 the Applicant started to come to Hong Kong to work as a foreign domestic helper and to remit part of her salary to her husband in the Philippines to support their family.

4.  In 2000 during her return to her home in Cadiz City for holiday, the Applicant discovered that her husband was in serious debts from 2 local money-lenders, for which he demanded more money from her for his use, and when she was unable to do so, he slapped and beat her, and soon his creditors also came to demand with threats that she should repay her husband’s debts as he was unable to do so, whereupon the Applicant became fearful for her safety and fled to Manila before returning to Hong Kong to continue with her employment as a foreign domestic helper.

5.  Thereafter she was informed by her mother that her husband’s creditors would continue to come looking for her with threats for her to repay her husband’s debts, while her husband also made threats against her on the phone, and so the Applicant ceased all contact with her husband, and during her subsequent returns to the Philippines for holidays, she would stay away from her home in Cadiz City and instead stayed in other cities such as Manila to avoid her husband and his creditors, but when her last employment was terminated on 10 January 2009, she was afraid to return to the Philippines and so she overstayed in Hong Kong, and more than 7 years later on 15 July 2016 she surrendered to the Immigration Department and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 27 September 2018 and attended screening interview before the Immigration Department with legal representation.

6.  By a Notice of Decision dated 29 October 2018 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 her husband or his creditors upon her return to the Philippines as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill her other than to press her to repay her husband’s debts or that there would still be any adverse interest in her after all these years since 2000 when she ceased all contact with them, that in any event it was a private monetary or domestic dispute between them 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 104 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 Manila where she had stayed before without incidents and where it would be difficult if not impossible for anyone to locate her.

8.  On 9 November 2018 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 April 2019 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 3 June 2019 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board did not raise any serious issues with the Applicant’s claim of fear of harm from her husband or his creditors over their monetary disputes but found in the absence of any official involvement that state or police protection would be available to the Applicant upon her return to the Philippines 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 10 June 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for relief was given in her Form or her supporting affirmation of the same date to which she just attached a copy of the decision but without putting forward 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.  For these reasons I am 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 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