Libao Aurelia Paz Balmelero v. The Adjudicator of the Non-refoulement Claims Petition Office Appointed To Determine the Applicant’s Petition and Another

HCAL 883/2018

[2019] HKCFI 2419

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 883 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 48-year-old national of the Philippines who last arrived in Hong Kong in December 2015 with permission to work as a foreign domestic helper until the expiration of her employment contract or within 14 days of its early termination, but when it was prematurely terminated on 12 February 2017, she did not depart and instead overstayed until 28 February 2017 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 husband over their domestic dispute and/or by her cousin over his land dispute with her father and had threatened to kill his entire family.  She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in San Andres, San Mateo, Isabela, the Philippines.  After leaving school she married her husband in 1988 and moved to his home in San Manuel,Isabela where she was a housewife and gave birth to three daughters.

3.In 2006 she started to work as a foreign domestic helper to help out with her family’s expenses by first working in Taiwan and later as from 2008 in Hong Kong.

4.In 2012 she started an intimate relationship with a man in Hong Kong, and when her husband heard about it, he became furious and made frequent phone calls to her threatening to kill her upon her return to the Philippines, and hence whenever she returned to the Philippines on holidays, she would avoid him by hiding elsewhere in her friend’s place away from his home town.

5.In 2014 she was told by her father who was having a heated dispute with her cousin over the use of certain farmland for which her cousin threatened to kill her father and his entire family including the Applicant.  Henceforth, when her last employment contract was prematurely terminated on 12 February 2017, she did not depart for the Philippines for fear of being harmed or killed by her husband or her cousin, and instead she overstayed in Hong Kong, and upon surrendering to the Immigration Department she raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form on 18 January 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.By a Notice of Decision dated 25 January 2018 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”).

7.In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her husband or her cousin to the Applicant upon her return to the Philippines as low due to the absence of any past ill-treatment from them, that there was no reliable or objective evidence of any real intention on their part to actually harm or kill her, that at any rate that her problems with them were private domestic or family disputes 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 104 million people spread across a vast territory of more than 298,000 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 where her husband and her cousin live and in large cities such as Manila where it would be difficult if not impossible for her husband or her cousin to locate her.

8.The Applicant then 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 3 May 2018 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 25 May 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board found no independent or reliable evidence to suggest that the Applicant’s claimed fear of harm from her husband or cousin as real or substantial,that none of her family members in the Philippines have been harmed by her cousin notwithstanding his threats, that after all these years it is doubtful that her husband or cousin would still have any adverse interest in her, and concluded that in any event with state or police protection and reasonable internal relocation within the Philippines available that her non-refoulement claim failed on all applicable grounds.

10.On 21 May 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 put forward the following grounds for her intended challenge:

(1) that the Director failed to appreciate or give proper importance to the presence of state acquiescence in the Applicant’s case that led to an unfair outcome of rejecting her non-refoulement claim;

(2) that the Director failed to take account of the fact that the Applicant was tortured at the behest of and in full collusion of the police and the state law enforcement agencies that the state would be rendered liable to the Applicant for failing to provide reasonable protection for its citizens under the duty of due diligence;

(3) that the Director failed to consider those relevant COI which supported the Applicant’s case that police in the Philippines would not be able to protect in his assessment of her claim;

(4) that the Director would only rely on those COI which suited his pre-conceived conclusion which is a clear case of unfair attitude that should render his decision void;

(5) that the Director failed to recognize that corruption and incompetency of the administration in the Philippines is still a very serious problem as evidenced by various human rights reports;

(6) that the Director failed to attain high standards of fairness required by the Wednesbury test in his decision which should therefore be considered as unreasonable in the scope of public law;

(7) that the adjudicator failed to make sufficient enquiry before finalizing her determination; and

(8) that the adjudicator failed to give sufficient chance to the Applicant to arrange relevant evidence in support of her non-refoulement claim as well as her appeal.  

11.These are however all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the adjudicator had erred in their decision,or what relevancy was state acquiescence to her claim when she had never reported the matters to the police or the authorities, or in what way did the Director fail to apply high standards of fairness or fail to take into account relevant COI or being selective or improperly rely on irrelevant COI, or how did the adjudicator fail to provide her with the opportunity to adduce relevant evidence in support of her claim.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as she never raised any request before the Board for further time to adduce further evidence, there is simply no merit in her complaint of not being able to do so.  As such and in the premises I do not find any of these grounds reasonably arguable for her intended application.

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 legal error or procedural unfairness or irrationality 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.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 22^nd day of November 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