Samantela Jennifer Abano v. Torture Claims Appeal Board

HCAL 1993/2018

[2021] HKCFI 1729

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1993 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 (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 41-year-old national of the Philippines who last arrived in Hong Kong on 5 November 2010 with permission to remain as a visitor up to 20 November 2010 when she did not depart and instead overstayed and was arrested by the police on 22 December 2010. After she was referred to the Immigration Department for investigation, she raised a torture claim on the basis that if she returned to the Philippines she would be harmed or killed by her abusive father for giving birth to a child out of wedlock, and after her torture claim was rejected, she then sought non-refoulement protection on the same basis. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Sto Nino, Iriga City, Camarines Sur, the Philippines. After leaving school, she came to Hong Kong in 2004 to work as a foreign domestic helper, during which she formed a relationship with an Indian man who was an asylum seeker released pending determination of his torture claim, out of which she later became pregnant with his child in 2009, and as a result she terminated her last employment contract and returned to the Philippines to stay with her parents.

3.However, during her stay in her parents’ home, her father who had abused the Applicant in the past became furious over her relationship with her boyfriend in Hong Kong and her pregnancy, and had made threats against her if she were to give birth to an illegitimate child. As a result, her mother became concerned for the Applicant’s safety, and upon her having given birth to her child in August 2010, her mother then moved both of them away to Manila to stay with a friend, and from there the Applicant later departed for Hong Kong where she subsequently overstayed, and upon her arrest by the police she then raised her torture claim and sought non-refoulement protection, for which she completed a Supplementary Claim Form (“SCF”) on 22 may 2017 and attended a screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).          

4.By a Notice of Decision dated 5 September 2017 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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 all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her father upon her return to the Philippines as low due to the low intensity and frequency of past ill-treatment from him, that her problem with her father was a private family 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”) 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 in large cities such as Manila where she had stayed before without incidents and where it would be difficult if not impossible for her father to locate her.

6.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 11 June 2018 before the Board during which she gave evidence and answered questions put to her by the Adjudicator for the Board. On 7 September 2018 her appeal was dismissed by the Board which also confirmed the Director’s decision.

7.In its decision the Board accepted the Applicant’s claim of past abuses by her father and his objection over her relationship with her boyfriend which led to the subsequent birth of her illegitimate child, but doubted her alleged threats from her father that caused her to leave her home country for Hong Kong, and found in any event that in the absence of any official involvement that state/police protection would be available to the Applicant upon her return to the Philippines as well as reasonable internal relocation for her to move safely to other areas away from her home district without any risk of being located by her father that her claim for non-refoulement protection failed on all applicable grounds.   

8.On 20 September 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 affirmation of the same date she merely attached a copy of the decision without putting forward any proper ground for her intended challenge, 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.

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 her 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.     

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 16^th day of June 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