AGPAD LETICIA S v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 2074/2018

[2020] HKCFI 1443

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2074 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 65-year-old national of the Philippines who first came to Hong Kong in 1983 to work as a foreign domestic helper, and had been continuously so employed until the expiration of her last employment contract on 18 February 2000 when she did not enter into any new contract, nor did she depart for the Philippines but instead she overstayed in Hong Kong until she was arrested by police on 26 February 2015.  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 members of the terrorist group New People’s Army (“NPA”) for quitting the group back in 1981.  She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Ducligan, Bucloc, Province Abra, the Philippines.  After leaving school she was recruited to join NPA as a member in their activities against the government and lived in the mountain of Province Abra hiding from the military.

3.  In late 1981 she decided to quit the party after disapproving of their activities and returned to her home.  However, two weeks later the party’s local leader together with several members came to her home and asked her to reconsider re-joining the party, but when she refused, they accused her of betraying the party and threatened to kill her if she failed to rejoin the party within their imposed deadline.

4.  After the NPA members left, the Applicant fled to Manila where she worked as a waitress and later a housekeeper without encountering any incidents or any NPA people, and in 1983 she departed the Philippines for Hong Kong to work as a foreign domestic helper, during which whenever she returned to the Philippines for vacations, she would only stay in Manila instead of returning to her home district so as to avoid those NPA people.

5.  However, when her last employment contract expired in 2000 and when she was unable to extend her visa in Hong Kong, she overstayed and went underground until her arrest on 26 February 2015 when she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form on 3 February 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.  By a Notice of Decision dated 28 February 2018 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 those NPA members upon her return to the Philippines as low due to the absence of past ill-treatment from them, that there is no reliable evidence other than her own speculation of any real intention of those NPA members to harm or kill her especially after such a long lapse of time since their last threat made some 36 years ago, 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 (“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 part of the Philippines away from her home district in large cities such as Cebu or Manila where she had stayed before without incidents and where it would be difficult if not impossible for those NPA members to locate her.

8.  On 13 March 2018 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 18 July 2018 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 10 September 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board found significant inconsistencies in the Applicant’s evidence as to her alleged involvements with NPA that it doubted her credibility of her claim which was further undermined by the fact that she failed to raise her claim when she overstayed in 2000 until she was arrested 15 years later, and that in any event with state protection and reasonable internal relocation available for her to move safely to other area of the Philippines away from her home district without any fear or risk of being located by those NPA people that her claim for non-refoulement protection failed on all applicable grounds.    

10.  On 2 October 2018 the Applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in her supporting affidavit of the same date she put forward the following grounds for her intended challenge:

(1) procedural impropriety in their failure to conduct sufficient inquiry into the relevant country of origin conditions;

(2) procedural irrationality/irrationality in their failure to provide reasons for their finding of lack of BOR 3 risk or to provide sufficient basis in support of such conclusion;

(3) error/misdirection in law in their failure to take into account or considerations of psychological strain and threats to the Applicant that she might be killed;

(4) error/misdirection in law in their failure to consider the obligation of the state to protect its citizens;

(5) procedural impropriety in their failure to consider the concept of extended state acquiescence as expounded in TK v Jenkins; and

(6) procedural impropriety in that they only focused on the fact that the Applicant had not suffered any physical torture by the NPA members without considering that she had suffered from mental stress and fear of being killed by the NPA members upon her return to her home country.  

11.  These are however mainly just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to her case or how the Director or the Board had erred in their 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 what relevancy was the concept of extended state acquiescence to her claim, or how did they fail to conduct sufficient inquiry into the relevant COI.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such 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 or 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 Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 77 – 106 of its decision with the benefit of hearing her oral evidence and her answers to questions raised of her claim during her appeal hearing, 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.

14.  Furthermore, the fact that it has been established by both the Director and the Board in their respective 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. 

15.  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.

16.  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