Cabahug Roselyn Dejerio v. Torture Claims Appeal Board

HCAL 707/2020

[2020] HKCFI 2466

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNO. 707 OF 2020

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 arrived in Hong Kong on 21 February 2009 from Vietnam and was arrested for trafficking of dangerous drug, for which she was subsequently convicted and sentenced to 16 years of imprisonment, and upon her discharge from prison and was referred to the Immigration Department for deportation in 2019, she raised a non-refoulement claim on the basis that if she returned to the Philippines she would be harmed or killed by those drug dealers for losing their drugs and/or by the anti-drug squad of the Philippines government for being a drug offender. 

2.The Applicant was born and raised in Bacolod City, the Philippines.  After leaving school she married her husband and raised a family of three children, but her relationship with her husband did not fare well with increasing quarrels between them when her husband would become violently abusive towards her that caused her to want to leave the marriage and to look for work outside the Philippines.

3.In late 2008 she became acquainted with some men whom she did not know were drug dealers who promised her a job by delivering packages for them from Vietnam to Hong Kong, and so on 22 December 2008 she departed the Philippines for Vietnam and China, and eventually on 21 February 2009 she was told to deliver a luggage to Hong Kong when she was arrested at the airport and realized that there were illegal drugs in the luggage, for which she was subsequently convicted and sentenced to prison for 16 years.   

4.Whilst in prison she was informed by her mother that those drug dealers had been looking for her for losing their drugs, while she also learnt that the Philippines government would deal with drug offenders very severely including executing them through their death squads such as the infamous Davao Death Squad, and so when she was discharged from prison and was to be repatriated to the Philippines, she became fearful for her life and therefore raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form on 21 October 2019 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.By a Notice of Decision dated 19 November 2019 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 Ordinance, Cap 383 (“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 of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from the drug dealers or the government’s death squad upon her return to the Philippines as low due to the absence of past ill-treatment from them, that there is no reliable evidence of any such threats from either of them against her other than hearsay and her own speculation, that in the absence of any official involvement that state or police protection would be available to her 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 105 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 Cebu where it would be difficult if not impossible for those drug dealers or death squad to locate her.

7.On 26 November 2019 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 9 March 2020 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 20 March 2020 her appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board found no evidence of any real threats of harm from those drug dealers or government agencies against the Applicant who has been away from the Philippines for more than 10 years that it is doubtful of any adverse interest from anyone in her, that in any event in the absence of any state or official involvement that state/police protection would be available to her upon her return to the Philippines as well as reasonable internal relocation for her to move safely to other area away from her home district in some large cities without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.

9.On 20 April 2020 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief in either her Form or her supporting affirmation, nor did she request 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 Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge.

10.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 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.

11.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.     

12.In the circumstances 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.

13.Furthermore, on 6 August 2020 the Applicant wrote to request to “cancel” or “withdraw” her application as she is being detained at the Castle Peak Bay Immigration Centre and that she just wants to go back to her home country as soon as possible. 

14.In the premises and 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 23^rd day of September 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