Laguisan Catalina Bunhiyan v. Immigration Department

HCAL 438/2018

[2020] HKCFI 1599

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 438 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 54-year-old national of the Philippines who last arrived in Hong Kong on 17 May 2013 with permission to work as a foreign domestic helper until the expiration of her employment contract 20 April 2014 or within two weeks of its early termination, but when her contract expired and when she was unable to find further employment, she did not depart and instead overstayed, and on 14 August 2015 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 some unknown men who had earlier killed her husband over some land dispute.  She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Lagawe, Ifugao, the Philippines.  After leaving school she worked as a teacher, married her husband in 1991 and moved to live with him in Baguio City where she gave birth to four children, and later in 1999 the family moved to Luna Apayao.

3.One day in February 2010 while her husband was working on his farmland, several men came to talk to him, but when their conversation turned heated and later deteriorated into a fight, and when the Applicant saw her husband fell onto the ground, she rushed out towards the farm but was knocked unconscious when she ran into one of the attackers.  Later when she came to her sense, she found herself surrounded by her friends and neighbours who told her that her husband had died from the attacks by those men who had fled thereafter, but she was advised not to go to the police as those attackers who were having a dispute with her husband over his farmland were wealthy and influential people with political connections, and that for her own safety she should move away.  She therefore took shelter in a friend’s place, but was later told that her house had been burned down by those men who had also taken over her husband’s farmland. 

4.After her husband was buried, his brother advised the Applicant to go work overseas in order to stay away from those attackers, and so in 2011 she departed the Philippines for Hong Kong to start her first employment contract as a foreign domestic helper, but when her last contract expired in April 2014, she did not depart and instead overstayed, and later surrendered to the Immigration Department and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form on 12 April 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.     

5.By a Notice of Decision dated 11 August 2016 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all then 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 the Hong Kong Bill of Rights Ordinance, Cap 383 (“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 of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from those unknown attackers upon her return to the Philippines as low due to the absence of past ill-treatment from them, that there was no reliable evidence of any intention on those unknown men to harm or kill her since they had already taken her husband’s farmland and that nothing had happened to her during the time when she returned to the Philippines for holiday, that the land dispute between her deceased husband and those attackers was a private personal matter 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 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 the Applicant as an able-bodied adult with working 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 those unknown attackers to locate her.

7.By a Notice of Further Decision dated 5 July 2017 the Director again rejected the Applicant’s claim in the absence of any response from her to an earlier invitation to submit additional facts which may be relevant to her 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 Applicant was 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 was filed on 24 August 2016, and for which she attended an oral hearing on 24 November 2017 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 15 March 2018 her appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.In its decision the Board accepted the Applicant’s claim that her husband may have been killed by those attackers over his farmland but found no evidence of any intention on their part to harm or kill her, that having already taken over the farmland that those men should have no further interest in her after all these years, and that in the absence of any official involvement that state/police protection would be available to the Applicant as well as reasonable internal relocation within the Philippines for her to move safely to other area away from her home district where she can re-establish her life and work without any risk of being located by those unknown men that her claim for non-refoulement protection failed on all applicable grounds.

10.On 19 March 2018 the Applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in her Form, and in her supporting affirmation of the same date she merely stated that she wanted to review the decisions because the Director and the Board disregarded her dangerous situation, but she did not provide any particulars or elaboration as to why or how it was so, nor did she put forward any other ground for her intended challenge or request for any oral hearing for her application.  As such and in the absence of any error of law or procedural unfairness in her process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, I do not find any reasonably basis to challenge the finding of them.

11.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the applicant to present and articulate his or her claim is in the screening process and interview before the Immigration Department and in the process before the Board where 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.In the Applicant’s case, 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 her 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.     

13.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.

14.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 27^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