FERNANDEZ LONILYN MABASA v. TORTURE CLAIMS APPEAL BOARD

HCAL 540/2018

[2020] HKCFI 2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 540 of 2018

     Application for Leave to Apply for Judicial Review

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

Following:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 59-year-old national of the Philippines who last arrived in Hong Kong on 14 December 2005 with permission to remain as a visitor up to 28 December 2005 when she did not depart and instead overstayed and was arrested by police on 14 September 2014. After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim on the basis that if she returned to the Philippines she would be harmed or killed by a wealthy and influential family in her home town for political reasons.  She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born in Cubao City, Manila, the Philippines and later moved with her family to Mapandan in Pangasinan where she was raised and received her education.  In 1984 when she was about aged 24, she first came to work in Hong Kong as a foreign domestic helper, and for the next 20 years of her continued employment in Hong Kong, she had only returned to her home in the Philippines for her vacation every two years.

3.  Her father who used to work in Kuwait retired in 2004 and returned to their home in the Philippines, and together with the Applicant and her brother they supported the leftist political party Bayan Muna (“BM”) and in particularly assisted one of the leaders Adolfo Aquino (“AA”) in his campaign against the corrupt influences and activities of the powerful Calimlim Family which had financially dominated Mapandan since the 1980s where one of their members General Jose Mejia Calimlim (“JMC”) was the mayor in 1996, and later his son Jose Ferdinand Calimlim (“JFC”) also became the mayor in 2004.

4.  While working in Hong Kong, the Applicant would continue to support BM by regularly raising funds for the party by selling handiworks during her weekly off on Sundays, and by attending their meetings whenever she returned to the Philippines during vacations.

5.  In November 2004 the Applicant departed Hong Kong upon completing her last employment, and went to visit one of her siblings in UK before returning to her home in the Philippines, during which AA and his driver were shot dead by a gunman in July 2005 whom the BM supporters suspected was sent by the Calimlim Family to assassinate AA.

6.  After the killing the Applicant and her family were asked by the village head to attend a meeting at the Municipal Hall to explain whether they had provided any assistance including financial to AA, and were warned to stop supporting BM or else there would be serious consequences.

7.  Thereafter the Applicant noticed that her home had been under surveillance, and that she and her family members were being stalked by strangers while going out.  Fearing that her life was in danger, she therefore fled to Paranaque in Manila, but when she heard that some strangers were looking for her there, she felt it was no longer safe to remain in the Philippines, and so on 14 December 2005 she travelled to Hong Kong as a visitor where she subsequently overstayed, and upon her arrest by the police in September 2014, she raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form on 13 January 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.     

8.  By a Notice of Decision dated 14 February 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 (“the Ordinance”) (“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”).

9.  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 the Calimlim Family upon her return to the Philippines as low due to the absence of any past ill-treatment from them, that the credibility of her claimed political involvement in BM is doubtful due to incorrect information provided by her about the party and the fact that she was during the material time in full time employment in Hong Kong and could not have been involved in their political activities, that there was no evidence that the Calimlim Family were going after her or had any adverse interest in her, that in any event 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 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 town of Mapandan and in large cities such as Manila where she had stayed before without incidents and where it would be difficult if not impossible for the Calimlim Family to locate her.

10.  On 28 February 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which she attended an oral hearing on 17 November 2017 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board. On 9 February 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

11.  In its decision the Board found the Applicant’s evidence of her claim as to her political involvement in and her activities for BM during all those years when she was on full time employment in Hong Kong vague, contradictory and unpersuasive, and that the credibility of her such claim was severely undermined by the lengthy delay in her lodgment of her claim for protection in Hong Kong and only upon her arrest that it concluded that she was an entirely untruthful witness who had attempted to rely on AA’s death some 13 years ago in an attempt to establish a basis for protection in Hong Kong, that it did not accept any of her claims that she fled to Hong Kong in 2005 due to threats or fear from the Calimlim Family or that she or any of her family members were ever sought, harmed or of any adverse interest to the Calimlim Family or any other political opponents as her family including her parents and many of her siblings other than a brother who died of pneumonia have remained in the Philippines all these years without harm, and that there is no reason why the Calimlim Family would have any adverse interest in someone who had spent the past 30 plus years in Hong Kong away from the Philippines that it concluded that it was not satisfied that the Applicant will be at risk of harm from the Calimlim Family or any other opponents of the BM party upon her return to the Philippines that her claim for non-refoulement protection failed on all applicable grounds.      

12.  On 3 April 2018 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her supporting affidavit of the same date she put forward the following grounds for her intended challenge:

(1)  that she was not provided with an interpreter during her oral hearing before the Board that she had to give evidence in English which is not her mother tongue and thereby prejudiced her the opportunity to fully explain her claim to the Board;

(2)  that the adjudicator failed to properly understand the political abuses by those in power in the Philippines or to take into account of its lack of human rights and zero tolerance for those who oppose the government when considering the Applicant’s claim;

(3)  that the adjudicator failed to appreciate the difficulties which she had as a foreign domestic helper with language problem in Hong Kong to seek help or advice for non-refoulement protection from the relevant authorities when considering the credibility of her claim; and

(4)  that the adjudicator failed to take into account the impact of threats made on her brother’s life had on the Applicant in the consideration of her claim.  

13.  For the Applicant’s complaint under Ground (1) of not being provided with an interpreter for her appeal hearing before the Board, I note from her supporting affidavit that it was her own decision not to wait for the interpreter and to proceed with her appeal including giving oral evidence in English before the Board.  I also note that she did not require any interpretation for her affidavit, while all the documents that were prepared by her while unrepresented are also in English.  As such and in the absence of any evidence that her case might have as a result been misunderstood by the Board being clearly and properly shown by the Applicant, I do not find anything amiss arising from her appeal process before the Board being conducted without the assistance of an interpreter, nor do I find this ground reasonably arguable for her intended challenge.

14.  As for her Ground (2) that the adjudicator failed to understand the political and human rights situation in the Philippines, it is just the Applicant’s bare assertion without any particulars or elaborations in support, and given the Board’s adverse finding on the credibility of her claim, I do not find this complaint relevant to her case, nor is it reasonably arguable for her intended application.

15.  Regarding her complaint under Ground (3), given the fact that she had lived in Hong Kong for more than 30 years, and that since 2005 when she overstayed in Hong Kong due to her alleged fear of harm from the Calimlim Family in the Philippines, the fact is that she had had some 9 years to seek non-refoulement protection but which she did not until her arrest in 2014, the Board was entitled under section 37ZD(1) of the Ordinance to take it into account together with other evidence available before the Board as damaging her credibility.  As such I do not find this ground reasonably arguable either.

16.  As for her complaint under Ground (4) that the adjudicator failed to take into account of the impact of threats on the life of her brother, as found by the adjudicator in the decision that such claim of threats against her brother was only the Applicant’s bare allegation based on hearsay in her absence from the Philippines without any other reliable evidence, while his death certificate produced by her which showed that he died of pneumonia clearly contradicted her claim.  In the premises I do not find any basis or merit in this complaint of the Applicant.     

17.  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.

18.  In the Applicant’s case, the Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 36 – 62 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, 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 reasonably arguable basis to challenge the finding of the Board.  

19.  Furthermore, the fact that it has been established by the Director in his decision that the risk of harm in the Applicant’s 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.

20.  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.

21.  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