Mogado Haidee Talosig Alias Mogado Haidee Alias Mogado Haidee T. Alias Talosig Haidee v. Torture Claims Appeal Board

HCAL 1004/2018

[2021] HKCFI 1118

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1004 of 2018

BETWEEN

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 34-year-old national of the Philippines who last arrived in Hong Kong on 9 May 2015 with permission to work as a foreign domestic helper until the expiration of her employment contract on 17 January 2017 or within 14 days of its early termination, but when her employment contract was prematurely terminated on 5 August 2016 she did not depart and instead overstayed and was arrested by police on 18 September 2016. After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim on the basis that if she returned to the Philippines she would be harmed or killed by her abusive husband. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Dana-ili, Abulug, Cagayan, the Philippines. After leaving school she married her husband and raised a family with 2 children.

3.In 2008 her husband started to indulge in drinking and illegal drugs and would become abusive to the Applicant by slapping and beating her at will, and to avoid such abuses the Applicant in 2009 went to work in Lebanon as a domestic helper until 2011 when she returned to the Philippines, but her husband remained abusive towards her, and after one particularly violent incident when he threatened her with a knife, she decided to leave the Philippines again, which she did in March 2014 when she came to Hong Kong to work as a foreign domestic helper, and when her last employment contract was terminated in August 2016, she overstayed in Hong Kong and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 2 December 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

4.By a Notice of Decision dated 22 February 2017 the Director of Immigration (“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”).

5.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 at risk of being harmed or killed by her husband upon her return to the Philippines in the absence of any evidence of such intention on the part of her husband, that her problem with her husband 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 102 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 City where it would be difficult if not impossible for her husband to locate her.

6.On 7 March 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 18 December 2017 before the Board during which she gave evidence and answered questions put to her by the Adjudicator for the Board. On 29 May 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

7.In its decision the Board found no evidence of any real intention on the part of the Applicant’s husband to harm or kill her upon her return to the Philippines other than her own speculation, that in any event it was a private domestic dispute between them without any official involvement that state/police protection would be available to her if needed as well as reasonable internal relocation for her to move safely to other area of the Philippines without any risk of being located by her husband that her claim for non-refoulement protection failed on all applicable grounds.  

8.On 4 June 2018 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form, and in her supporting affidavit of the same date she merely attached copies of the decision and other documents from her hearing bundle before the Board but without putting forward any proper ground for her intended challenge. As such and in the absence of any error of law or irrationality 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.

9.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.

10.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 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.     

11.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.

12.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 22^nd day of April 2021.

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