Case Document

100%Judiciary

HCAL 2197/2018

[2020] HKCFI 2513

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2197 of 2018

BETWEEN
	Badinas Gemma Leardo	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

consideration of the documents only; or

consideration of the documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 44-year-old national of the Philippines who last arrived in Hong Kong on 18 December 2012 with permission to remain as a visitor up to 1 January 2013 when she did not depart and instead overstayed, and on 18 November 2014 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 former husband for having an affair with another man and for divorcing him. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Barangay East Candoni, Negros Occidental, the Philippines. Upon leaving school she worked in various jobs, married her husband who was a local police officer, and raised a family of 2 children in Barangay, Camansi, Kabankalan City.

3.Her marriage with her husband however did not fare well as he was abusive towards her, and in 2004 when she discovered that he was having affairs with various women, she decided to leave their marriage by applying to work as a foreign domestic helper in Hong Kong in 2005, and during which she formed a relationship with a local resident.

4.In late 2006 upon the termination of her employment contract, the Applicant returned to the Philippines but she stayed at her cousin’s place in Manila to avoid her husband, but one day in January 2007 her husband came and took her to a hotel where he beat her for leaving him and for having an affair in Hong Kong. Eventually he let her go but with a warning that he would kill her if she did not put an end to her relationship with her boyfriend in Hong Kong.

5.Fearing for her life, the Applicant therefore departed the Philippines for Hong Kong and China to look for employment, and in January 2008 started another employment contract as a foreign domestic helper in Hong Kong, during which she resumed her relationship with her boyfriend, and when she became pregnant with his child, she ended her employment contract in September 2008 and started their cohabitation.

6.In April 2009 she gave birth to a daughter, and later filed for divorce with her husband in 2010 by asking her friend in the Philippines to serve her divorce papers on him who then became furious and threatened to kill her if she returned to the Philippines.

7.Thereafter the Applicant shuttled between Hong Kong and the Philippines, and in between she gave birth to twins daughters out of her relationship with her boyfriend, and eventually during her last visit in January 2013, she overstayed in Hong Kong and subsequently raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form on 11 November 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

8.By a Notice of Decision dated 15 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 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”).

9.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that she would be in danger of being harmed or killed by her former husband upon her return to the Philippines due to the low intensity and frequency of past ill-treatment from him, that her problems with him was a private domestic dispute 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 working experience to move to other part of the Philippines away from her home district in large cities such as Quezon or Davao where it would be difficult if not impossible for her former husband to locate her.

10.On 27 December 2017 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 1 August 2018 before the Board during which she gave evidence and answered questions put to her by the Adjudicator for the Board. On 21 September 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

11.In its decision the Board accepted the Applicant’s claim of her former husband’s abuses and threats made against her during their marriage, but found no evidence of any such threats from him since 2007 that it is doubtful that he would still have any adverse interest in her after all these years, and that in any event it was a private domestic dispute between them without any state or official involvement that state/police protection would be available 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 without any risk of being located by her former husband that her claim for non-refoulement protection failed on all applicable grounds.

12.On 11 October 2018 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her supporting affidavit of the same date she put forward the following grounds for her intended challenge:

(1) Procedural impropriety in failing to conduct sufficient inquiry into the relevant COI;

(2) Procedural impropriety/irrationality in failing to provide reasons for assessment of lack of BOR 3 risk and/or insufficient basis to support its conclusion of lack of BOR 3 risk;

(3) Error/Misdirection in law in failing to take into account or consideration of the psychological strain and threats to the Applicant personally or threats to her directly to kill her and her family members;

(4) Error/Misdirection in law in failing to apply or properly apply the obligation of a signatory state to adopt reforms or means of redress aimed at ensuing the safety of its citizens which are effective in any event;

(5) Procedural impropriety in failing to consider the concept of extended state acquiscenc;

(6) Error /Misdirection in law in failing to consider the Applicant’s fear that she will face risk upon refoulement when the Director and the Board only focused that her claim is personal and private problem and that she did not suffer any physical harm from her enemies because she was in Hong Kong notwithstanding that her family had suffered and that she was mentally stressed while she received death threats;

(7) Error /Misdirection in law in its assessment of the Applicant’s fear that she did not receive any physical torture while in the Philippines and that she could relocate to other places notwithstanding that she would be living in fear that her former husband could locate her and harm her children that would cause her mental stress which the Director and the Board did not consider.

13.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 her case or how the Board or the Adjudicator had erred in the decision, or why is the concept of extended state acquiescence relevant to her claim, or in what way did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in her case, or in what way did the Board fail to conduct sufficient inquiry into the relevant COI. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, 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.

14.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.

15.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.

16.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.

17.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 20^th day of November 2020.

	(TAM Kam-man)
	for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or his solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 20^th November 2020 Badinas Gemma Leardo Applicant’s ref. no.: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 20^th November 2020 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 9675/17/12/342/F515 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2829/17 (formerly RBCZ/12099/15) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)