Limos Gina Tudayan v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

HCAL 476/2018

[2019] HKCFI 937

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 476 of 2018

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 oral submissions by the Applicant 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 52-year-old national of the Philippines who last arrived in Hong Kong on 17 May 2009 with permission to work as a foreign domestic helper until the expiration of her employment contract on 23 February 2011 or within 14 days of its early termination, but when her contract was prematurely terminated on 5 December 2010 she did not depart and instead overstayed until 14 December 2015 when she surrendered to the Immigration Department and lodged a non-refoulement claim on the basis that if she returned to the Philippines she would be harmed or killed by the father of her daughter’s boyfriend over certain disputes.  She has since been released on recognizance pending the determination of her claim. 

2.The applicant was born and raised in Barangay Ninoy, Aguilar, Pangasinan, the Philippines.  After leaving school she worked as a nursing aide, got married with two daughters, and in 1995 started to work as a foreign domestic helper in Hong Kong.

3.In 2010 her elder daughter got pregnant by her boyfriend and moved to reside with him and his family in Calasiao during which they had had frequent quarrels over her boyfriend’s affairs with other women.

4.After her daughter gave birth to a child (granddaughter) in 2011, her boyfriend did not mend his behavior and their conflicts continued, and when the applicant tried to talk to the boyfriend’s father about the boyfriend’s behavior, his father simply replied that there was nothing that could be done as his son was now an adult.

5.In 2013 when the boyfriend had another affair, and when the applicant again tried to discuss the matter with his father on the telephone, their conversation turned into a heated quarrel during which the father threatened to kill the applicant.

6.By October 2014 the relationship between her daughter and her boyfriend had deteriorated to the extent that her daughter wanted to leave with the granddaughter, but when her boyfriend’s father refused to allow her to leave with her child, the applicant called the father and tried to reason with him which again turned into a heated quarrel during which the father again threatened to kill her when she returned to the Philippines.

7.In early 2015 when she heard that the boyfriend had left her daughter to marry another woman, the applicant called his father and again the two had a heated quarrel during which the father again threatened to kill her when she returned to the Philippines.  As a result and after she had surrendered to the Immigration Department the applicant lodged her non-refoulement claim for protection from the threats from the boyfriend’s father as he was wealthy and influential with political connection including with the mayor of his home district in Calasiao, and for which she completed a Non-refoulement Claim Form (“NCF”) on 17 November 2016 and attended screening interview before the Immigration Department with legal representation form the Duty Lawyer Service (“DLS”).     

8.By a Notice of Decision dated 23 December 2016 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 and non-derogable rights under the Hong Kong Bill of Rights (“HKBOR”) 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 eisk”).

9.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 the risk of harm from the boyfriend’s father and family is likely to materialize upon her return to the Philippines due to the absence of past ill-treatment from them, that all the threats from the father to the applicant were made verbally in the heat of quarrels with no real intention to harm or kill her, that it was a private dispute between two families 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 100 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 work experience to move to other area away from her home district in large cities such as Manila where it would be difficult if not impossible for the boyfriend’s father or his family to locate her.   

10.On 6 January 2017 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 4 October 2017 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 28 February 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

11.In its decision the Board found the applicant’s evidence incomplete, internally inconsistent, difficult to follow and substantially based on hearsay that it was unable to give any weight to her assertion of the threats of the boyfriend’s father to kill her, and concluded that she has failed to establish her claim under any of the applicable grounds, and that even if she had been able to show that she faced a real risk of harm, it was confined primarily to her home district or the area of the boyfriend’s family that it would not be unduly harsh for the applicant to relocate to other areas of the Philippines where it would be difficult if not impossible for the boyfriend’s family to locate her.    

12.On 23 March 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 affirmation of the same date she put forward the following grounds for her intended challenge:

(1)  that she was confused about her appeal process before the Board and was just given her hearing bundle without being told what the documents were about;

(2)  that the determination of the Board was never read or translated to her and that she was unaware of why her claim was rejected and on what grounds was her appeal dismissed; and

(3)  that the Director and the Board failed to take into proper consideration that she would not be able to get any help or protection from the authorities in the Philippines as they were corrupt and would treat her claim as just a domestic case.   

13.For her complaint in ground (1) of being confused by the appeal process to the Board and of not being told or explained of the documents in the hearing bundle by the Board, the applicant already had the benefit of legal representation in presenting her case to the Director, and was able to testify and make representation in her appeal hearing before the Board and to answer questions put to her by the adjudicator without difficulty with the assistance of an interpreter, while she must also be well familiar with most of the documents in the hearing bundle including her NCF which was completed on her instructions to her legal representation from DLS and the record of her screening interview, as well as the Director’s decision which must have been interpreted and explained to her by her lawyer before her decision to lodge her appeal to the Board.  As such I do not find any merit in this complaint of the applicant.

14.As for her complaint of not being interpreted or explained as to the Board’s decision, I note that the applicant did not require interpretation for any of her documents submitted to the Director or the Court including her present application and supporting affirmation for which it is also clear that she has had legal assistance in these proceedings. At any rate it cannot form any basis for challenging the decision, and as such I do not find any merit in this complaint either.

15.Regarding her last complaint about the authorities in the Philippines being corrupt and would treat her claim as a domestic case, as she had never sought assistance from the police in the Philippines, such concern of hers is only based on speculation and not supported by the reliable and objective COI referred to by the Director in his decision.

16.The fact is that the applicant’s claim was rejected essentially on her credibility by the adjudicator for the Board with the benefit of hearing her at her oral hearing and based on the evidence available to him, and for the detailed analysis and reasons set out in paragraphs 42 – 71 of the decision in which the applicant has failed to properly identify any legal error or procedural unfairness or irrationality.   

17.As has been repeatedly emphasized by the Court of Appeal, the evaluation of risk of harm is primarily a matter for the Director and the adjudicator who are entitled to make their evaluation based on the evidence available to them, and 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 properly and clearly identified by the applicant, as judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Re Nupur Mst [2018] HKCA 524.

18.Furthermore, as it has also been established by both the Director and the Board in their decisions 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.     

19.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.

20.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 12^th day of April 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