Tumaliuan Thelma Cabauatan Alias Cabauatan Thelma Alias Tumaliuan Thelma Alias Tumaliuan Thelam C. v. Torture Claims Appeal Board

HCAL 1222/2020

[2021] HKCFI 2857

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1222 of 2020

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:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 48-year-old national of the Philippines who last arrived in Hong Kong on 4 January 2015 with permission to work as a foreign domestic helper until the expiration of her employment contract on 22 November 2016 or within 14 days of its early termination, but when her employment was prematurely terminated on 14 April 2015 she did not depart and instead overstayed and was arrested by police on 4 August 2015. 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 Iguig Cagayan, the Philippines. After leaving school she married her husband and moved to reside with him in Tuguegarao, Cagayan where they raised a family with 3 children.

3.However, during the marriage her husband was abusive towards the Applicant by frequently slapping and punching her at will, and to avoid his abuses at home, the Applicant in 2012 applied to work as a foreign domestic helper in Hong Kong, returning to the Philippines only for holidays during which she would stay at her siblings’ home to avoid her husband.

4.After her last employment was terminated on 14 April 2015, the Applicant was afraid to return to the Philippines as her husband had found out about her relationship with another man in Hong Kong and she feared that he would harm or kill her, and so she overstayed in Hong Kong, and upon her subsequent arrest by the police, she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 23 July 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

5.By a Notice of Decision dated 28 August 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”).

6.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her husband upon her return to the Philippines as low due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of harm from her husband other than hearsays and her own speculations, that in any event 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”) show 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 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 husband to locate her.

7.On 7 September 2019 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 22 May 2019 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 14 May 2020 her appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board found no reliable evidence of any intention of her husband to harm or kill her other than hearsays and her own speculations, and that in any event it was a private domestic dispute between her and her husband without any official involvement that state/police protection would be available to her upon her return to the Philippines as well as reasonable internal relocation for her to move safely to other area away from her home district without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.  

9.On 18 June 2020 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 just stated that the decision disregarded her dangerous situation but without providing any details or particulars or elaboration how it did so, nor did she put forth 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.

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 her 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, 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.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.Furthermore, the Applicant recently on 5 August 2021 filed an affidavit in these proceedings to request to withdraw her application as it is now safe for her to return to her home country and that she wishes to do so as soon as possible.

14.In the premises, and as I am for the reasons given not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of her latest confirmation that it would be safe for her to return to her home country, I accede to her request and accordingly dismiss her leave application.

Dated the 23^rd 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