Case Document

100%Judiciary

HCAL 2656/2018

[2021] HKCFI 1364

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2656 of 2018

BETWEEN

	Dela Cruz, Juliet Guerrero	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 4 July 2013 with permission to work as a foreign domestic helper until the expiration of her employment contract on 4 July 2015 or within 14 days of its early termination, but when her contract was prematurely terminated on 23 June 2015, she did not depart and instead overstayed until 4 November 2015 when 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 boyfriend and/or his brother over some disputes regarding her use of the property of her former boyfriend. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in in Batac, Ilocos Norte, the Philippines. After leaving school she worked as a babysitter, married her husband and raised a family of 3 children in her home district.

3.In 2002 she divorced her husband, and went to work in Singapore as a domestic helper until 2004 when she then came to Hong Kong to work as a foreign domestic helper, during which she met her boyfriend Joselito, also a Filipino, via social media who was then working in South Korea.

4.In 2009 the Applicant decided to return to the Philippines where she was invited by Joselito to stay in his property in Olongapo City where they planned to get married in future after he finished his job in South Korea, during which he also remitted money to her for her living expenses in the Philippines.

5.During her stay in Joselito’s place, the Applicant got into some dispute with Joselito’s brother and was assaulted and raped by him, and after she made a report to the police, his brother threatened to kill her unless she dropped her case. As she became fearful for her life, she decided to make arrangements to come to Hong Kong again to work as a foreign domestic helper, and for which she sold Joselito’s motorcycle without his permission and used the money to pay her agents for the arrangements, and so on 4 July 2013 she returned to Hong Kong to resume her job as a foreign domestic helper, but when her last employment contract was prematurely terminated on 23 June 2015, and when Joselito had threatened to kill her for selling his motorcycle, she therefore overstayed in Hong Kong and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 28 February 2018 and attended a screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 27 March 2018 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”).

7.In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from Joselito or his brother upon her return to the Philippines as low due to the absence of or low intensity and frequency of past ill-treatment from them, that she had already dropped her case against Joselito’s brother and hence he would have no further reason to kill her, while it is doubtful that Joselito would have any real intention to carry out his threats against the Applicant over his motorcycle, that in any event they were all just their private personal disputes 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 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 areas of the Philippines away from her home district or Joselito’s home district in large cities such as Manila where it would be difficult if not impossible for Joselito or his brother to locate her.

8.On 9 April 2018 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 24 July 2018 before the Board during which she gave evidence and answered questions put to her by the Adjudicator for the Board. On 8 November 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board found such inconsistencies and discrepancies in the Applicant’s evidence that it did not consider her to be a witness of truth and was not satisfied that she had told the truth in relation to the critical elements of her claim, and that in any event there is no evidence that Joselito or his brother would still have any adverse interest in her over their disputes after all these years even if they were true that the Applicant would be able to obtain state or police protection if needed upon her return to the Philippines that her claim for non-refoulement protection failed on all applicable grounds.

10.On 23 November 2018 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for her intended challenge:

(1) Procedural unfairness in that the Board had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that it did not satisfy the requirement;

(2) Procedural unfairness in that the Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(3) Procedural unfairness in that the Board’s decisions to refuse the Applicant’s appeal were unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(4) Procedural unfairness in that the Board failed to meet the greater care and duty owed to a self-represented claimant;

(5) That the Board had significantly relied on sources of news that is not officially recognized or is hearsay or outdated which resulted in making groundless speculations that it is safe for her to return to her country of origin; and

(6) That the Applicant was only provided with her hearing bundle just six days before her appeal hearing with the majority of documents in the bundle in English thereby giving her insufficient time to prepare for the hearing due to her limited skills in English and being unrepresented that although she answered all the questions honestly her credibility was found questionable thus making it an unfair hearing due to lack of care by the Board to make appropriate arrangements in relation to the hearing bundle.

11.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 in what way did the Board or the Adjudicator unlawfully fetter their discretion or act in a procedurally unfair manner or that the decision was unreasonable or irrational in the public law sense, or what sources of news were not officially recognized or were hearsay or outdated. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for her intended application.

12.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.

13.The only other complaint which the Applicant appeared to have made with any elaboration was about the hearing bundle being provided for her only a few days before her appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given her insufficient time to prepare for her appeal.

14.Even if it is true that the hearing bundle indeed came to her late as alleged, and the Applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that the Applicant can clearly read and write some English, and that most of the documents including her NCF, records of her screening interviews and the Director’s decisions should be well familiar to her as they had earlier all been made available to her when she still had legal representation, whilst her NCF was completed on her own instructions with legal assistance, and that at her oral hearing she never raised any issue or requested the Adjudicator for further time to enable her to better prepare for her appeal. Accordingly I do not find anything amiss arising from the hearing bundle for the Applicant in her appeal before the Board.

15.Essentially the Board rejected her claim on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 74 – 106 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, 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 to challenge the finding of the Board.

16.Furthermore, the fact is that it has been established by the Director in her decision that the risk of harm in the Applicant’s claim if true is a localized one and that it is not unreasonable or unsafe for her to relocate to other parts of the Philippines, a decision also confirmed by the Board, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

17.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.

18.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 13^th day of May 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 13^th May 2021 Dela Cruz, Juliet Guerrero 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 13^th May 2021 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 11137/18/4/147/F687 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 241/18 (formerly RBCZ 11446/16) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)