Berces Sharon Valdez v. Torture Claims Appeal Board

HCAL 1535/2021

[2021] HKCFI 3700

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1535 of 2021

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 23 February 2014 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 24 October 2015 or within 14 days of its early termination, but when her employment was prematurely terminated on 1 May 2015, she did not depart and instead overstayed in Hong Kong, and on 8 January 2016 she was arrested by police for breaching her condition of stay and for undertaking unauthorized employment for which she was subsequently convicted and sentenced to prison for 4 weeks, and upon her discharge from prison and was referred to the Immigration Department for deportation, she then raised a non-refoulement claim on the basis that if she returned to the Philippines she would be harmed or killed by her husband and other members of the family for conducting lesbian relationships with other women in Hong Kong.  She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born in San Quintin, Pangasinan, the Philippines and was raised in Manila as a Catholic.  After leaving school she married her husband and moved to Pandi, Bulacan where they raised a family with 2 children.

3.During the marriage the Applicant discovered that her husband was a womanizer and an alcoholic who would abuse her badly whenever he was drunk or lost his temper by scolding and beating her at will, and so to avoid such abuses the Applicant in 2006 started to come to Hong Kong to work as a foreign domestic helper, returning home only during her leave holidays to visit her children.

4.In about 2007 the Applicant formed a lesbian relationship with another woman in Hong Kong, and when it ended 4 years later, she had gone on to have other lesbian relationships, but in 2013 when she returned to the Philippines for holiday, her such relationships were discovered by her husband and her family members from her Facebook messages, and as they were all devout Catholics and considered that she had brought shame to the family that they disowned her while her husband also beat her repeatedly with threats to kill her if she did not put an end to such behavior before she was allowed to return to work in Hong Kong, and so when her last employment was prematurely terminated on 1 May 2015, she was afraid to return to the Philippines and therefore 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 26 May 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).    

5.Whilst being released on recognizance pending the determination of her claim, the Applicant was arrested by police again on 7 February 2018 for the offence of drugs trafficking for which she was convicted on 13 September 2019 and was sentenced to prison for 5 years.        

6.By a Notice of Decision dated 22 July 2021 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 of all the relevant circumstances of the Applicant’s claim and found no reliable evidence of any real intention of her husband or her family to harm or kill her upon her return to the Philippines due to the absence of or low intensity and frequency of past ill-treatment from them, that her problems with them were private family 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”) show that there are laws in the Philippines to prohibit discriminations against LGBT people and to protect people of same sex relationship as well as reasonable internal relocation alternatives being available in the Philippines with a large population of 110 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 she was raised in the past and where it would be difficult if not impossible for her husband or other members of her family to locate her.

8.On 30 July 2021 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 9 September 2021 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 11 October 2021 her appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board accepted the Applicant’s evidence as to her claimed sexual orientation but found no reliable evidence of any real intention of her husband or other members of her family to seriously harm her as a result, that any such problems which she might have with them were private family disputes without 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 safely move to other areas away from her home district without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.    

10.On 4 November 2021 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 or her affidavit, 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.

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 fact is that it has been established by both the Director and the Board in their respective decisions 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 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.                

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 8^th day of December 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