Abogado Edna Barrientos v. Torture Claims Appeal Board

HCAL 139/2019

[2021] HKCFI 3575

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 139 of 2019

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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 46-year-old national of the Philippines who last arrived in Hong Kong on 2 March 2017 with permission to remain as a visitor up to 16 March 2017 when she did not depart and instead overstayed, and on 21 March 2017 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 two murder suspects for having witnessed the murder which they were suspected to have committed.  She was subsequently released on recognizance pending the determination of her claim. 

2.The Applicant was born and raised in Bulacan, Manila, the Philippines.  After leaving school she ran a grocery store in her home district where she lived with her parents and siblings at the back of the store.

3.One evening in February 2017 after delivering grocery to a customer and on her way back to the store, the Applicant saw 2 men entering one of her neighbors’ home, and then she heard several gun shots inside the house, and when she looked inside through a window, she saw two of her neighbors lying dead on the floor, and when the two men came out form her neighbor’s house and saw her, they pointed their guns at her and warned her not to say anything or else they would kill her too before fleeing on their motorcycles.

4.Afterwards the Applicant was so shocked and fearful for her life that she fled and hid in her aunt’s place in Santa Maria Bulacan, but when she was later told by her parents that some unknown men had been to their home looking for her and threatened her parents that they would kill all of them if any report was made to the police, the Applicant felt it was no longer safe to remain in the Philippines, and so on 2 March 2017 she departed for Hong Kong where she overstayed and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 21 March 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 24 April 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 found no substantial grounds for believing that she would be in danger of being harmed or killed by the two murder suspects upon her return to the Philippines due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no reason for them to harm or kill the Applicant given that she had never made any report or statement to the police, that in the absence of 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 Quezon City where it would be difficult if not impossible for those murder suspects to locate her.

7.On 9 May 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 10 October 2018 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 19 December 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board found serious inconsistencies discrepancies and conflicts in the Applicant’s evidence between those given in her appeal and those given earlier to the Director as to her alleged witness of a murder and the threats made against her by the murder suspects that it did not regard her claim as having any credibility whatsoever that it rejected her claim to have witnessed a murder in her home village prior to coming to Hong Kong or that she feared harm from the alleged murder suspects should she return to the Philippines that her claim for non-refoulement protection failed on all applicable grounds. 

9.On 15 January 2019 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 affidavit of the same date she stated that she disagrees with the decision in assessing her claim as it was inconsistent and vague or lacking details as she was not feeling well during her appeal hearing due to high fever and chicken pox that caused her confusion over the questions asked of her by the Adjudicator, and insists that she did witness the murder which has caused her fear of harm from those murderers if refouled to her home country.  She did not request any oral hearing for her application. 

10.There is however no evidence or indication in the Board’s decision of any such health issue ever raised by the Applicant during her appeal hearing before the Board, nor has she produced any such evidence to corroborate such bare assertions in her present application.  As such and given the Board’s clear finding on the credibility of her claim based on her evidence given during her appeal hearing, 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 this ground or complaint of the Applicant reasonably arguable for her intended challenge. 

11.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. 

12.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 14 – 34 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 his 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.   

13.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, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                 

14.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. 

15.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 26^th day of November 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