ESTRADA NELIA DALAZA v. TORTURE CLAIMS APPEAL BOARD

HCAL 1776/2019

[2024] HKCFI 2427

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1776 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;

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 46-year-old national of the Philippines who arrived in Hong Kong on 4 March 2015 as a visitor with permission to remain as such up to 18 March 2015 when she did not depart and instead overstayed, and on 23 September 2015 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 a certain local congressman from her home district over their monetary dispute. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Agoo La Union, the Philippines. After leaving school she worked as a tobacco worker, married her husband and raised a family with 4 children in her home district.

3.  In 2010 she was offered a job by a local Congressman Thomas Dumpit (“TD”) to work as a coordinator in his son’s election campaign for the post of the town mayor of Agoo La Union, and was given large sum of money to pay the villagers to votes for his son in the election, but when his son eventually lost the election, TD blamed the Applicant and demanded that she paid back all the election money, and when she was unable to do so, TD sent men to threaten to kill her if she failed to return the money.

4.  Fearing for her life the Applicant fled to Manila to hide in her cousin’s place for 2 years before departing the country in 2012 for Malaysia where she worked as a domestic helper before returning to the Philippines in 2013 where she stayed in her brother’s home in Laguna as she was afraid to return to her home district in Agoo La Union.

5.  However, as she was still fearful of being located by TD, she again departed the Philippines on 5 June 2014 for Hong Kong to work as a foreign domestic helper, but upon the termination of her last employment in January 2015, she was unable to find another employment and so she left for Macau and subsequently returned to Hong Kong on 4 March 2015 as a visitor but subsequently overstayed in Hong Kong, and 6 months later on 23 September 2015 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 23 November 2017 and attended screening interview before the Immigration Department with legal representation.

6.  By a Notice of Decision dated 31 January 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 found no substantial grounds for believing that there will be any real risk of her being harmed or killed by TD and his followers upon her return to the Philippines due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of TD to seriously harm or kill her other than to press her to return the votes money, that in any event it was a private monetary dispute between her and TD only 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 14 February 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 25 January 2019 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 17 June 2019 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of her claim of fear of harm from TD and his followers that caused her to overstay in Hong Kong to seek protection, that there was no reliable evidence of any real intention of TD to seriously harm or kill her other than to press her to return the election money, and that in any event it was a private monetary dispute between her and TD only without 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 26 June 2019 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 her supporting affirmation of the same date to which she just attached a copy of the decision but without putting forth any proper ground for her intended challenge, nor was she able to do so at the hearing of 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 Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in 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.

13.  Furthermore, the fact is that it has also been established by both the Director and the Board in their respective decisions that the risk of harm in the Applicant’s claim even 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.

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 all 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 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