Paglingayen Rosalyn Ringor and Another v. Torture Claims Appeal Board /Non-refoulement Claims Petition Office and Another

HCAL 870/2017

[2019] HKCFI 1501

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 870 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 Applicants being present / absent in open court;

Order by Deputy High Court Judge Bruno Chan:

1.  Ringor Jasmine Cressel Andrada be included in these proceedings as the 2^nd Applicant; and

2.  leave to apply for judicial review refused.

Observations for the Applicants:

1.The 1^st applicant (“A1”) is a 36-year-old national of the Philippines who last arrived in Hong Kong on 24 April 2014 with permission to work as a foreign domestic helper until the expiration of her employment contract on 27 April 2016, but when her employment was prematurely terminated on 17 April 2015, she did not depart and instead overstayed in Hong Kong until 14 May 2015 when she surrendered to the Immigration Department, and subsequently lodged a non-refoulement claim on the basis that if she returned to the Philippines she would be harmed or killed by her husband for being pregnant with the child of another man, and after given birth to a daughter, the 2^nd applicant (“A2”), on 9 December 2015, A1 also lodged a non-refoulement claim for her on the same basis.  The applicants have since been released on recognizance pending the determination of their claim.  

2.A1 was born and raised in Sevilla Sur, San Fernando City, La Union, the Philippines.  After leaving school she worked in various jobs as a cook, housemaid and domestic helper, and married her husband who worked as a cook and they resided in the same neighborhood of her parents in Sevilla Sur where A1 later gave birth to a son.

3.In April 2008 A1 started working as a foreign domestic helper in Hong Kong, and her relationship with her husband began to deteriorate, in particularly since 2012 when she heard that he was having an affair with another woman.

4.In about October 2012 A1 met a Pakistani man in Hong Kong with whom she soon started a relationship and in January 2015 became pregnant with his child, but in April 2015 upon hearing about it her husband became furious and made threatening phone calls to her that he would kill her if she returned to the Philippines, and when her employment was subsequently terminated, A1 became concerned for her safety and decided to overstay in Hong Kong and lodged a non-refoulement claim for herself and later for A2 upon her birth, for which A1 completed a Non-refoulement Claim Form (“NCF”) jointly for both of them on 23 February 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.By a Notice of Decision dated 12 May 2016 the Director of Immigration (“the Director”) rejected the applicants’ 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 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 applicants’ claim and assessed the risk of harm from A1’s husband upon their return to the Philippines as low due to the absence of past ill-treatment from him other than some verbal threats made on the telephone several years ago, that in any event it was a domestic dispute without any official involvement that state or police protection would be available to the applicants 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 101 million people spread across a vast territory of more than 300,000 square kilometers that it would not be unduly harsh for A1 as an able-bodied adult with work experience to move with A2 to other areas away from her home district such as Baguio City where it would be difficult if not impossible for her husband to locate them.

7.By a Notice of Further Decision dated 2 November 2016 the Director again rejected the applicants’ claim in the absence of any response from them to an earlier invitation to submit additional facts which may be relevant to their 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”).

8.By then the applicants were already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which they filed on 25 May 2016, and for which A1 attended an oral hearing on 15 August 2017 before the Board during which she gave evidence for herself and on behalf of A2 and answered questions put to her by the adjudicator for the Board.  On 13 October 2017 their appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.In its decision the Board found A1’s alleged past history of ill-treatment from her husband does not meet the minimum threshold under any of applicable grounds, that there are systems and organizations in the Philippines to assist her to resolve her marital disputes with her husband with laws and police to protect her from domestic violence, and that should she still be in fear of any threats posed by her husband, she should be able to relocate to other metropolitan areas in the Philippines such as Baguio or Manila where she can safely work and raise her daughter without any fear that her husband would have the resources or capability to locate them.

10.On 13 November 2017 A1 filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but neither in it nor in her supporting affirmation did they put forward any grounds for their intended challenge.

11.As A1 did not request for any hearing for her application, accordingly no hearing was held, and up to now no ground has been put forward by her for the intended challenge, nor did she make any complaint of any error or procedural unfairness in either of the decision of the Director or the Board, and in her supporting affirmation she merely exhibited copies of the previous decisions and the appeal hearing bundle. Given the fact that A1 had in the past always included her daughter A2 in her claim and as she is now unrepresented, I shall assume that it is also her intention to include A2 in her present application and accordingly I have included A2 in these proceedings.

12.As has been repeatedly emphasized by the Court of Appeal, 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 error of law or procedural unfairness or irrationality being 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. 

13.Furthermore, the fact that it has been established by both the Director and the Board in their respective decision that the risk of harm in the applicants’ claim is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of the Philippines, there is simply no justification to afford them 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 applicants’ claim.

15.For these reasons I am not satisfied that there is any prospect of success in the applicants’ intended application for judicial review, and I accordingly refuse their leave application.

Dated the 28^th day of June 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