Fulgencio Milagros S. v. Torture Claims Appeal Board

HCAL 406/2018

[2019] HKCFI 505

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 406 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 58-year-old national of the Philippines who last arrived in Hong Kong in 1994 with permission to work as a foreign domestic helper until the expiration of her employment contract on 31 January 1996 or within 14 days of its early termination, but when her contract was prematurely terminated on 20 July 1995 she failed to depart and instead overstayed in Hong Kong until 15 February 2016 when 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 abusive husband.  She has since been released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Dupax del Norte, Nueva Vizcaya, the Philippines where her husband and children still live.  After leaving school she first worked as a farmer, got married and gave birth to three children all of whom are now adults.

3.Initially her husband worked together with her in farming and selling their vegetable produce, but later when he got too lazy to work and just indulged in drinking, the applicant became the sole breadwinner of the family, and in 1989 she switched to work as a foreign domestic helper first in Singapore and starting in 1991 in Hong Kong, and remitted her monthly salaries to the Philippines to support her husband and their family.

4.However, when her then employment contract was prematurely terminated in July 1995, the applicant did not return to the Philippines because her husband had threatened to kill her for failing to send him any money for his use, and therefore she overstayed in Hong Kong all these years during which she had no further contact with her husband.  In February 2016 she surrendered to the Immigration Department and lodged her non-refoulement claim, for which she later completed a Non-refoulement Claim Form (“NCF”) on 25 April 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.By a Notice of Decision dated 23 May 2017 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 or non-derogable rights under the Hong Kong Bill of Rights (“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”).

6.In his decision the Director took into account all the relevant circumstances of the applicant’s claim and found no substantial grounds for believing that there would still be any real and substantial risk of her being harmed or killed by her husband upon returning to the Philippines due to the absence or low intensity and frequency of past ill-treatment from him, that there was no evidence of any real intention on his part to harm or kill her in particular after all these years that any such intention will have dissipated, that it was a domestic dispute between 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 102 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 part of the Philippines away from her home district in large cities such as Manila where it would be difficult if not impossible for her husband to locate her.

7.On 5 June 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 8 January 2018 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 27 February 2018 her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board accepted the applicant’s account of events in the Philippines but found no substantial grounds for believing that she would still be at risk of any harm from her husband whom she had not seen or heard from for more than 23 years, that even if her fear of such harm still persists that she as an able-bodied adult with work experience can always relocate to other part of the Philippines away from her home district in large cities such as Manila where her husband neither has the ability nor the resources to locate her, and concluded that her non-refoulement claim therefore fails on all applicable grounds. 

9.On 13 March 2018 the applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in it she put forward the following grounds for her intended challenge:

(1)  that the Board had unlawfully fettered his discretion by refusing the applicant’s appeal on the grounds that they did not satisfy the requirement;

(2)  that the adjudicator acted in a procedurally unfair manner in dealing with her appeal;

(3)  that the board’s decisions to refuse her appeal were unreasonable or irrational in the public law sense, or were the result of procedural errors or unfairness;

(4)  that the Board failed to meet the greater care and duty owed to a self-represented claimant; and

(5)  that the Board had significantly relied on source of news not officially recognized or was simply hearsay or outdated that the lack of credible source of information had resulted in groundless speculations that rendered it unsafe for the applicant to be returned to her home country.

10.These are however all very broad and vague assertions of the applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to her case or how the Board or the adjudicator had erred in the decision, or in what way did the adjudicator act in a procedurally unfair manner in dealing with her appeal, or how was his decision unfair or unreasonable in the public law sense, or in what way were the COI relied on by the Board outdated or not officially recognized.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant, and in the absence of any error in the decision being clearly and properly identified by the applicant, I do not see any basis or merits in any of her complaints or that any of them are reasonably arguable in her intended challenge.

11.The only other complaint which the applicant appeared to have made with any elaboration was about the hearing bundle being provided to her only a few days before her appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given her insufficient time to prepare for her appeal.

12.Even if it is true that the hearing bundle indeed came to her late as alleged, and the applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including her NCF, records of her screening interviews and the Director’s decisions should be well familiar to the applicant as they had earlier all been already made available to her when she still had legal representation, whilst her NCF was completed on her own instructions with legal assistance, and that at her oral hearing she never raised any issue or requested the adjudicator for further time to enable her to better prepare for her appeal.  As such I do not find anything amiss arising from the hearing bundle for the applicant in her appeal before the Board.

13.The fact is that it has been established by both the Director and the Board in their respective 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, 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 I accordingly refuse her leave application.

Dated the 31^st day of May 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