Alcaide Caroline Vilaga v. Bruce Henry, Adjudicator of the Non-refoulement Claims Petition Office

HCAL 1209/2018

[2020] HKCFI 78

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1209 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 40-year-old national of the Philippines who arrived in Hong Kong on 9 October 2009 with permission to work as a foreign domestic helper until the expiration of her employment contract on 9 October 2011 or within 14 days of its early termination.  Her employment contract was prematurely terminated on 6 April 2011, but she did not depart and instead overstayed until her arrest on 26 April 2017 for which she was subsequently charged for the offence of overstaying and possession ofa forged identity card and was sentenced to prison for 15 months, during which she raised a non-refoulement claim on the basis that if she returned to the Philippines she would be harmed or killed by her creditor for failing to repay her loan.  She was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Dagupan City, Pangasinan, the Philippines. After leaving school she worked in various odd jobs, and in October 2009 she applied to work as a foreign domestic helper in Hong Kong, for which she borrowed a loan from a neighbor to pay for the necessary fees and expenses to her employment agency, with interest on the principal sum payable on a monthly basis until the loan was paid off within one year.

3.As a result, the Applicant departed on 9 October 2009 for Hong Kong to start her employment, and from her salary she would make her monthly interest payment to her neighbor. However, when her father had fallen sick and as she was required to pay for his medical expenses, she could not afford to make her payment to her neighbor, and although her neighbor did not press her for payment, her neighbor’s son who was a drug addict would come to the Applicant’s home when drunk to harass her family by throwing stones at their house.

4.After her employment contract was terminated in April 2011, the Applicant overstayed in Hong Kong as she was afraid to go home for fear of being harmed by her neighbor’s son or her neighbor’s husband who was a local policeman, and upon her subsequent arrest in 2017, she raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form on 30 November 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.By a Notice of Decision dated 12 December 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 assessed the level of risk of harm from her creditor or her creditor’s family upon the Applicant’s return to the Philippines as low due to the absence of past ill‑treatment from them, that in any event it was a private monetary 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 104 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 creditor to locate her.

7.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 27 April 2018 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 16 May 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board found the Applicant’s evidence about her loan from her creditor confusing and contradictory, that there is no evidence of any threats being made directly against her by her creditor or her creditor’s family over her loan, that there is no reliable evidence to support any finding that the Applicant will face any real risk of ill-treatment upon her return to the Philippines, and concluded that her claim for non-refoulement protection failed on all applicable grounds.

9.On 27June 2018 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for her intended challenge:

(1) that the adjudicator failed to take into account the argument that the Applicant’s lack of faith and confidence in the Filipino police due to their corruption that they would not be able to protect or be willing to protect without bribes in the event of the Applicant’s return to the Philippines in the determination of her claim; and

(2) that the adjudicator failed to apply high standards of fairness in the determination of her claim as she was not legally represented. 

10.These are however just broad and vague assertions of the Applicant 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 fail to apply high standards of fairness in the determination of her claim, while her complaint that the local police were corrupt appears irrelevant given the fact that she had never sought any help from the police over the dispute of her loan.

11.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 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 Nupur Mst v Director of Immigration [2018] HKCA 524.

12.In the Applicant’s case, the Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 35 – 47 of its decision with the benefit of hearing her in evidence and in answer to questions raised of her claim during the oral hearing of her appeal before the Board, and in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

13.Furthermore, the fact that it has been established by the Director in his 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, a decision also confirmed by the Board, 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 15^th day of January 2020.

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