Binuloan Elissa Ricomes v. Torture Claims Appeal Board/ Non- Refoulement Claims Petition Office and Another

HCAL 882/2017

[2019] HKCFI 81

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 882 of 2017

BETWEEN

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 the Applicant being present / absent in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The applicant is a 51-year-old national of the Philippines who last arrived in Hong Kong on 9 September 2012 with permission to work as a foreign domestic worker until the expiration of her employment contract on 9 September 2014 or within two weeks of its early termination.  On 28 January 2013 her contract was prematurely terminated but she did not depart and instead overstayed until her arrest by the police on 3 January 2014.  After she was referred to the Immigration Department for investigation, she lodged a non-refoulement claim on the basis that if she returned to the Philippines she would be harmed or killed by her abusive husband and/or by a loan shark for failing to repay her loan.  She has since been released on recognizance pending the determination of her claim.

2.The applicant was born and raised in Malaybalay, Bukidnon, the Philippines.  After leaving school she worked in various jobs, married her husband in 1998 and moved with him to Cagayan de Oro City where they raised three children.

3.During the marriage her husband indulged in drinking and gambling, and in 2003 he started to be abusive to the applicant by pushing, slapping and hitting her especially when he was drunk, and had on a few occasions raped her but for which she did not seek medical treatment nor reported to the police.

4.After a particular serious abuse during which she was raped again by her husband, the applicant was advised by her sisters that she could get away from her husband’s abuses by going to work as a foreign domestic worker in Hong Kong.

5.The applicant therefore borrowed a loan from a local loan shark for her trip to Hong Kong with the intention to repay it from her salaries earned from her job, and so she came to Hong Kong in April 2008 to start her first employment and to make monthly remittances for her loan repayment until January 2013 when her third contract was terminated and she was no longer able to make any repayments, and as a result the loan shark had come to her home in the Philippines looking for her threatening to kill her, and as her husband was also upset about it he demanded that she returned to the Philippines or else he would kill her.

6.As a result of those threats the applicant became fearful for her life and therefore overstayed in Hong Kong and lodged her non-refoulement claim, for which she later completed a Non-refoulement Claim Form (“NCF”) on 17 February 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.By a Notice of Decision dated 29 May 2015 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 torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights (“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 risk of harm from her husband and the loan shark upon her return to the Philippines as low due to the low intensity and frequency of past ill- treatment from them, that her problems with them were domestic or personal disputes that in the absence of official involvement that state or police protection would be available to her 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 107 million people spread across a vast territory of 7,000 islands and more than 300,000 square kilometers that it would not be unduly harsh for the applicant as an able-bodied adult with work experience to move to other area away from her home district where it would be difficult if not impossible for her husband or the loan shark to locate her.

9.By a Notice of Further Decision dated 25 September 2017 the Director again rejected the applicant’s claim upon receiving and considering further representations from her which she submitted as relevant to her non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

10.By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, of which she filed her notice on 10 June 2015, and for which she attended an oral hearing on 19 October 2016 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 3 November 2017 her appeal was dismissed by the Board which also confirmed the decisions of the Director.

11.In its decision the Board doubted that the applicant was a genuine protection seeker, that the past ill-treatments from her husband and the loan shark if true did not attain the level of severity under any of the applicable grounds for non-refoulement protection, and for which there is no evidence to suggest that the police or authorities in the Philippines would not provide assistance or protection to her, and that internal relocation alternatives are available that it is not unreasonable for her to relocate to other areas in the Philippines such as Manila where neither her husband nor the loan shark would have the desire or resources to locate her.   

12.On 14 November 2017 the applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in her Form, and in her supporting affirmation of the same date she merely exhibited copies of her NCF, the decisions of the Director and of the Board, her notice of appeal to the Board and the hearing bundle for her appeal before the Board without making any statements about those decisions against which she intended to challenge.

13.Nor did she request for any oral hearing for her application.  Accordingly no hearing was held, and up to now no ground has been put forward by her for her intended challenge.   

14.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim, as the proper occasion for an 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 Re Litoun Mounsy [2018] HKCA 537. 

15.In the present case the applicant did not even attempt to make any complaint or criticism of either decisions of the Director or the Board, and the fact that it has been established by both 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.

16.In the premises and having proceeded to consider 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.

17.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.

Dated the 13^th day of February 2019.

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