MORQUEDA JOEREAN ALAGADMO v. TORTURE CLAIMS APPEAL BOARD

HCAL 2544/2019

[2023] HKCFI 2459

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2544 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 refused.

Observations for the Applicant:

1.  The Applicant is a 42-year-old national of the Philippines who arrived in Hong Kong on 12 November 2016 with permission to work as a foreign domestic helper until the expiration of her employment contract on 12 November 2018 or within 14 days of its early termination, but when her employment was prematurely terminated on 4 January 2017, she did not depart and instead overstayed, and some 3 months later on 6 April 2017 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 brother-in-law for reporting to the police of his illegal drugs activities and/or her creditor for failing to repay her debts and/or the Christian community for being a lesbian. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Olongapo City, the Philippines. After leaving school she worked as a cleaner, and continued to reside with her parents and siblings in her home district.

3.  She realized that she was a lesbian since very small and feared discrimination by the churches and the general community of predominantly Catholics or Christians, and that she often faced difficulty finding jobs.

4.  In 2010 she discovered that her brother-in-law who was living with her family was dealing in illegal drugs and therefore reported the matter to the police, and for which both her sister and brother-in-law were furious with her and that her brother-in-law had assaulted her and made threats against her, and on one occasion he attacked with a knife and stabbed her in the stomach and all over her body that she had to be taken to the hospital for medical treatments, and upon her subsequent discharge and return to her home where she continued to live in fear from her sister and brother-in-law.

5.  In 2012 her father became very ill and was hospitalized, and to meet his hospital expenses the Applicant borrowed a loan from a local money-lender, for which she had to repay by monthly instalments, and when she started to have difficulty making the payments, her creditor would make death threats against her, and so in 2014 she went to Saudi Arabia to work as a domestic servant to earn higher income so as to repay her debts, and in November 2016 she came to Hong Kong to work as a foreign domestic helper.    

6.  However, after her employment was prematurely terminated on 4 January 2017, the Applicant was afraid to return to the Philippines, and so she overstayed in Hong Kong, and some 3 months later in April 2017 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 19 June 2018 and attended screening interview before the Immigration Department with legal representation.             

7.  By a Notice of Decision dated 22 August 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”).

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 brother-in-law or her creditor or the Catholic community upon her return to the Philippines as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of her brother-in-law or her creditor to seriously harm or kill her despite ample opportunities for them to do so all those years prior to her departure of the country or of any adverse interest of the Catholic community 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 (“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 it would be difficult if not impossible for anyone to locate her.

9.  On 31 August 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 8 February 2019 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 23 August 2019 her appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision the Board found inconsistencies discrepancies exaggeration and illogical in the Applicant’s evidence that it doubted her claim of fear of harm from her brother-in-law or her creditor or the Catholic community that caused her to overstay in Hong Kong or to seek non-refoulement protection, that there is no evidence of any relay intention of any of them to seriously harm or kill her when they had had ample time and opportunities to do so during all those years prior to her departure of her country or of any evidence that she had ever been subjected to any threats or persecution or discrimination for being a homosexual by the general or Catholic community in her country, and 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 as well as reasonable internal relocation for her to move safely to other part of the Philippines away from her home district without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds. 

11.  On 2 September 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 in her supporting affirmation of the same date in which she just stated that the decision was not satisfactory but without providing any details or particulars or elaboration as to why it was so, 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 his 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 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.

13.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risks of harm in her claim if real are localized ones 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 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