Hussain Rowena Cayabyab v. Torture Claims Appeal Board

HCAL 2045/2018

[2021] HKCFI 2577

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2045 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 54-year-old national of the Philippines who last arrived in Hong Kong on 29 December 2004 as a visitor with permission to remain up to 26 January 2005 when she did not depart and instead made an application for resident visa in Hong Kong, and after it was rejected by the Immigration Department on 17 March 2010, she raised a torture claim on the basis that if she returned to the Philippines she would be harmed or killed by her creditors for failing to repay her debts, 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 Bunuan, Dagupan City, the Philippines. After leaving school she came to Hong Kong to work as a foreign domestic helper, and in 1994 she married a local resident and was allowed to stay on a dependent visa, but after her marriage ended in a divorce, she formed a relationship with another man and gave birth to a daughter in Hong Kong before being repatriated to the Philippines in February 2004 when she was then pregnant with her son.

3.Upon returning to her home district in the Philippines, she borrowed money from various friends and relatives for her living expenses as well as the hospital expenses for her subsequent birth of her son.

4.On 29 December 2004 she returned to Hong Kong with her children as a visitor and again applied for a resident visa, during which she was not allowed to work and was therefore unable to repay her various debts to her creditors in the Philippines, and some of them approached her father in the Philippines and made threats to harm or kill her upon her return, and hence when her residency application was refused by the Immigration Department in 2010 and when she was subjected to deportation, she raised her torture claim on the basis of her fear of being harmed or killed by her creditors upon her return to the Philippines, and after her torture claim was rejected, she then sought non-refoulement protection, for which she completed a Supplementary Claim Form (“SCF”) on 9 August 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 31 December 2016 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”).

6.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no reasonable likelihood that the risk of harm from her creditors that she perceived is real and foreseeable due to the absence of any past ill-treatment from them, that it was a private monetary dispute between her and her creditors 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 Manila where it would be difficult if not impossible for her creditors to locate her.

7.On 10 January 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 20 April 2018 with her lawyer from DLS before the Board during which she gave evidence and answered questions put to her by the Adjudicator for the Board and with submissions made on her behalf by her lawyer. On 27 July 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board found numerous inconsistencies and contradictions in the Applicant’s evidence that it did not accept her as a witness of truth or any of her claims of threats made by her creditors to her or her father as credible, that her credibility was further undermined by her failure to raise her claim within reasonable time upon her arrival in Hong Kong, and concluded that she has not faced any threats from her creditors and that she will not face any real risk of harm from anyone upon her return to the Philippines that her claim for non-refoulement protection failed on all applicable grounds.   

9.On 26 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 other than a regurgitation of her claim of risk of harm from her creditors over her failure to repay her debts, and in her supporting affirmation of the same date she just attached a copy of the decision and other documents from her hearing bundle for her appeal before the Board but without putting forth 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.

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 Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 44 – 58 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.  

12.Furthermore, the fact is that it has been established by the Director in his 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 part 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.     

13.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.

14.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 1^st day of September 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