Luceno Rosemary T. v. Torture Claims Appeal Board

HCAL 1460/2018

[2020] HKCFI 1417

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1460 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 61-year-old national of the Philippines who last arrived in Hong Kong in June 1998 with permission to work as a foreign domestic helper until 26 June 2000when she did not depart and instead overstayed and was arrested by police on 14 April 2014 and was subsequently convicted of the offence of possession of a forged identity card and breach of condition of stay, and was sentenced to prison for 10 months.  Upon her discharge from prison and was referred to the Immigration Department for repatriation, she raised a non-refoulement claim on the basis that if she returned to the Philippines she would be harmedor killed by certain unknown local gangsters who were said to have dealings with her deceased husband.  She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Bacolod City, Negros Occidental, the Philippines.  After leaving school she worked as a secretary or receptionist, and married her husband in 1980 and became a full time mother to take care of her children.

3.In 1993 she decided to work as a foreign domestic helper in Hong Kong, returning to the Philippines only for holidays.  In 2000 after she completed her then employment contract, but before she was able to enter into a new contract, a relative of hers who also worked as a foreign domestic helper in Hong Kong cheated her and stole her passport,without which she was unable to enter into a new contract, and so she overstayed in Hong Kong since June 2000, during which she also failed to have any further contacts with her husband.

4.In 2012 she was told by her neighbor that her husband had passed away in the Philippines, and that some unknown local gangsters who claimed to have dealings with herhusband had come to her home looking for the Applicant but without giving any reason whythey were looking for her.  As a result the Applicant became fearful for her life, and after she was arrested in 2014 for possessing a forged identity card, for which she was subsequently convicted and sentenced to 10 months’ imprisonment, and upon her discharge from prison but before she was removed from Hong Kong, she raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 1 December 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.By a Notice of Decision dated 28 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 by the unknown local gangsters upon her return to the Philippines as low due to the absence of any past ill-treatment from them, that there is no evidence of any threats from any gangsters other than hearsay from some neighbor and her own speculation, that in any event in the absence of 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 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 Quezon where it would be difficult if not impossible for those unknown gangsters to locate her.

7.On 9 January 2018 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 16 May 2018 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 19 July 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 regarding her husband’s alleged associations with the local gangsters and the alleged threats facing her in the Philippines to be vague, speculative and implausible and unsupported by any reliable or objective evidence, and that in any event with reasonable internal relocation within the Philippines for the Applicant to safely move to other parts away from her home district that her claim for non-refoulement protection failed on all applicable grounds.

9.On 25 July 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 Board had unlawfully fettered its 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 the Applicant’s claim;

(3) that the Board’s decisions to refuse the Applicant’s appeal were unreasonable or irrational in the public law sense or 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;

(5) that the Board had significantly relied on the source of news which is not officially recognized or is simply hearsay or outdated resulted in groundless speculations that it would be safe for her to return to her home country; and

(6) that the Director provided her the hearing bundle only six days before the appeal hearing with the majority of the documents in the bundle in English thereby giving her insufficient time to prepare for the hearing due to her limited skills in English and being unrepresented and was unable to find a cheap interpreter to assist her for her appeal before the Board.

10.These are however mostly 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 her case or how the Board or the adjudicator had erred in the decision, or in what way did the Board unlawfully fetter its discretion in dealingwith her appeal or that its decision was unreasonable or irrational in the public law sense, or how did the adjudicator act in a procedurally unfair manner, or what sources of news were not officially recognized or hearsay or outdated.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for her intended challenge.

11.As has been repeatedly emphasized by the Court of Appeal, the 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.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.

13.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 decision should be well familiar to the Applicant as they had earlier all been made available to her when she still had legal representation,whilst her NCF was completed on her own instructions with legal assistance, and as she hadbeen able to rely on her English skill while living in Hong Kong for more than 20 years, 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, I do not find anything amiss arising from the hearing bundle for the Applicant in her appeal before the Board, nor doI find any merits in this complaint of hers.

14.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.

15.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.

16.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 8^th day of July 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