Case Document

100%Judiciary

HCAL 1515/2018

[2021] HKCFI 1174

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1515 of 2018

BETWEEN

	Jacob Jennifer Galicia	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 (counsel for) the Applicant in open court / the Applicant being absent 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 31-year-old national of the Philippines who last arrived in Hong Kong in May 2015 with permission to work as a foreign domestic helper until the expiration of her employment contract or within 14 days of its early termination, but when her employment contract was prematurely terminated in late December 2015, she did not depart and instead overstayed, and on 26 January 2016 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 abusive former boyfriend. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Santiago, Isabela, the Philippines. In 2008 she formed a relationship with her former boyfriend and with whom she later gave birth to their son in December 2009.

3.During their cohabitation the Applicant found her boyfriend abusive towards her when he would beat her at will, and that he often abused alcohol and illegal drugs instead of finding employment.

4.In April 2013, in order to escape from her boyfriend’s abuses, the Applicant came to Hong Kong to work as a foreign domestic helper, during which her relationship with her boyfriend further deteriorated to the extent that he had threatened to kill her upon her return to the Philippines, and so in December 2015 when her last employment contract was prematurely terminated, she was afraid to return to the Philippines and instead overstayed in Hong Kong and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 30 November 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 18 January 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”).

6.In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real risk of her being harmed or killed by her former boyfriend upon her return to the Philippines due to the low intensity and frequency of past ill-treatment from him, that it was a private domestic dispute between them 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”) shows 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 parts of the Philippines away from her home district such as Cebu where it would be difficult if not impossible for her former boyfriend to locate her.

7.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 22 December 2017 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 accepted the Applicant’s claim of her difficult relationship with her former boyfriend, but found inconsistent and contradictory evidence in her alleged threats from her former boyfriend that it doubted her claim of fear of harm from him upon her return to the Philippines, and 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 areas of the Philippines away from her home district without any risk of being located by her former boyfriend that her claim for non-refoulement protection failed on all applicable grounds.

9.On 1 August 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 or in her supporting affidavit of the same date, nor did she request any oral hearing for her application. 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.

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 the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other parts 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 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.

13.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 28^th day of April 2021.

	(MAK Sze-ki)
	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 28^th April 2021 Jacob Jennifer Galicia 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 28^th April 2021 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 5998/17/1/282/F325 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2789/16 (formerly RBCZ/13283/16) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)