ESTEBAL CYRIL LYN BELLEZA ALIAS ESTEBAL CYRIL LYN ALIAS ESTEBAL CYRIL LYN B ALIAS ESTEBAL CYRIL LYN BELLEZ ALIAS BELLEZ CYRIL LYN ALIAS BELLEZA CYRIL LYN v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 744/2021

[2022] HKCFI 3199

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 744 of 2021

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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 34-year-old national of the Philippines who last arrived in Hong Kong on 8 March 2019 as a visitor with permission to remain up to 22 March 2019 when she did not depart and instead overstayed, and some 6 months later 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 former boyfriend over their domestic dispute. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Balasan, Iloilo, the Philippines. After leaving school she worked as a nursing attendant in a local hospital in her home district before moving to Kuwait to work as a domestic helper.

3.  In 2011 she returned to the Philippines, and started a relationship with her boyfriend Mark and gave birth to their son.

4.  In March 2017 she came to Hong Kong to work as a foreign domestic helper and to remit money to Mark in the Philippines to support their family.

5.  Later in the same year she formed a relationship with another man in Hong Kong with whom she became pregnant, and soon her employment was terminated, and when Mark later found out about her relationship with another man in Hong Kong, he threatened to kill her when she returned to the Philippines, and so she was afraid to return depart and overstayed in Hong Kong and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 3 March 2020 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 27 May 2020 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 former boyfriend Mark upon her return to the Philippines as low due to the absence of or low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of him to seriously harm or kill her, that it was in any event a private domestic dispute between the only two of 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 109 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 country away from her home district in large cities such as Manila where it would be difficult if not impossible for Mark to locate her.

8.  On 9 June 2020 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 28 April 2021 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 18 May 2021 her appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board found the Applicant’s claim of fear of harm from her former boyfriend Mark arose from a private domestic dispute between the two of them without any official involvement that state or police protection would be available to the Applicant upon her return to the Philippines to negate any risk of harm from her former boyfriend that her claim for non-refouelemnt protection failed on all applicable grounds.

10.  On 24 May 2021 the Applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and put forward the following grounds for her intended challenge:

(1)  That the Director and the Adjudicator reached their decisions wrongly in assessing the Applicant’s claim in that their decisions were unfair and unreasonable as required by the Wednesbury test in failing to take into account that the right to life must be protected by the criminal law from extra-judicial killings that the Applicant may face if deported back to her home country which is a clear case of unfair attitude shown by the Director and the Adjudicator which in itself enough to render their decisions void;

(2)  That the Director failed to attain high standards of fairness in failing to take account of the fact that corruption and incompetency of the administration in the Applicant’s home country is still a very serious problem as various human rights organizations had compiled reports on the matters that stated testament to the Applicant’s assertions;

(3)  That the Adjudicator was procedurally improper or unfair when assessing whether to accept explanations provided by the Applicant and unreasonably required her to respond to questions that she was not in a position to offer any response;

(4)  That the Adjudicator failed to take account the nexus of political parties and official corruption which exists in the Applicant’s home country thus making persecution effectively persecution by the state; and

(5)  That the Adjudicator made a ruling to dismiss the Applicant’s claim based on findings which the Adjudicator ought to allow her appeal and thus the decision was irrational.

11.  These are however all just broad and vague assertions of the Applicant containing a few key words or phrases but without any particulars or specifics or elaborations as to how they apply to her case or how the Director or the Adjudicator had erred in their decisions, or in what way were their decisions unfair or unreasonable, or what relevancy are extra-judicial killings or police corruptions to her claim which was even on the factual basis of her own case a private personal dispute between her and her former boyfriend without any state or official involvement. 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 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 finding of that her problem with her former boyfriend was a private domestic dispute negated by the availability of state or police protection for the thorough and detailed analysis and reasoning set out in its decision and 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.

14.  The fact is that it has also 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, a decision also confirmed by the Board, 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.  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.  Furthermore, the Applicant recently on 7 September 2022 filed an affidavit requesting to withdraw her application as all her problems have been resolved and that she wants to return to her home country as soon as possible.

17.  In the premises, as I am for the reasons given not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and given her latest confirmation that it is now safe for her to return to her home country, I 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