Marcellano Maria Cris Pacat v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

Case No.HCAL 428/2019[2022] HKCFI 732

Court

High Court CFI

Date11 Mar 2022

Judge—

Case Document

100%Judiciary

HCAL 428/2019

[2022] HKCFI 732

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 428 of 2019

BETWEEN

	Marcellano Maria Cris Pacat	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

consideration of documents only; or

consideration of documents and Applicant being absent in open court;

Order by The Honourable Madam Justice Anna Lai:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The Applicant is a 38-year-old national of Philippines who came to Hong Kong as a domestic helper on 8 November 2015. After her last employment contract was terminated on 11 May 2016, she did not depart and had overstayed since 26 May 2016. She was arrested for “Breach of condition of stay” on 23 August 2016. She lodged a non-refoulement claim on 14 November 2016 and 6 January 2017 on the basis that if she returned to the Philippines, she would be harmed or killed by her boyfriend and a creditor. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant’s non-refoulement claim was dismissed by the Director of Immigration (“Director”) on 31 January 2018. On 24 January 2019 her appeal was dismissed by the Torture Claims Appeal Board (“Board”) which also confirmed the decision of the Director. On 15 February 2019 the Applicant filed a Form 86 for leave to apply for judicial review of the Board’s decision.

Background

3.The Applicant was born and raised in San Carlos City, Pangasinan, the Philippines. She had received education for 10 years. She had been living in her own cottage. She worked as a domestic helper from 1999 to 2001 and as a foreign domestic helper in Hong Kong from June 2013 to May 2016.

4.In 1999 the Applicant met her boyfriend who moved into her cottage in November 2001. Three months later he was persuaded to take alcohol and drugs by her neighbours. He assaulted the Applicant when she advised him to leave those people. In early 2013, she planned to work as a foreign domestic helper in Hong Kong and borrowed a loan from a creditor. After her arrival in Hong Kong, she remitted money to her boyfriend to meet the interest payment but he had withdrawn the money for his own use. In around August 2015, the Applicant returned home to confront her boyfriend but was assaulted by him. After her fourth employment in Hong Kong was terminated in May 2016, the agent told her that she could hardly be employed again because she had been terminated for more than 3 times.

5.The Applicant had been overstaying in Hong Kong since May 2016. She could not go home as she needed to avoid her boyfriend and the creditor. At her last contact with her sister on 5 November 2017, the Applicant was told that her boyfriend still frequently brought neighbours to her cottage and the creditor came to enquire about her whereabouts, threatening that he would wait for her at the airport if she returned to the Philippines.

Decision of the Director

6.By a Notice of Decision dated 31 January 2018 the 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 and non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) being violated including right to life under Article 2 of Section 8 (“BOR 2 Risk”), and risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 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 assessed the level of risk of harm from her boyfriend and the creditor upon her return to the Philippines as low for the following reasons:

(a) The low level of past ill-treatment from them and there is no evidence that they have any real intention to kill the Applicant. The boyfriend had never inflicted any serious bodily harm on the Applicant. The creditor had never threatened her except once telling her sister that he would wait for her return at the airport. The Applicant had never received any threats from anyone due to the outstanding debt.

(b) The threat of harm from her boyfriend and the creditor is a localized one. The Applicant’s private disputes with them had not affected her mobility. She was free to depart the Philippines and took up employment in Hong Kong from 2013 to 2016. She had received no nuisances whilst hiding from her boyfriend for two months in a friend’s home in the Philippines. Besides, there is no evidence that they would be capable of locating her all over the country.

(c) There is no evidence that the boyfriend or the creditor was acting in any official capacity, or any public officials were involved. Reliable and objective Country of Origin Information (“COI”) show that reasonable state or police protection would be available to the Applicant if resorted to.

(d) Internal relocation alternatives are available in the Philippines with a large population of more than 104 million people spread across a large territory of more than 300,000 square kilometers. It would not be unduly harsh for the Applicant as an able-bodied adult with reasonable education level to relocate to other areas of the Philippines such as Cebu or Manila where it would be very difficult for her boyfriend or the creditor to locate her.

The Board’s Decision

8.On 15 February 2018 the Applicant lodged an appeal to the Board against the Director’s decision, for which she attended an oral hearing on 13 November 2018 before the Board during which she had no further information to supplement. On 24 January 2019 her appeal was dismissed by the Board which also confirmed the decision of the Director.

9.Having considered all the evidence, the Board made the following findings:

(a) The Applicant had not been inflicted serious injuries by her boyfriend; the only injury sustained was bruises. She had not been assaulted nor inflicted with any injuries by the creditor.

(b) The Applicant had no obligation to repay the loan because the loan was obtained by her boyfriend, that’s why she gave the money to him instead of paying direct to the creditor.

(c) It was purely a private and personal dispute between the Applicant and her boyfriend, and a private money dispute between her and the creditor. Both of them are not government officials.

(d) The Applicant had no intention to apply for protection as her employment was terminated on 11 May 2016 but she did not apply for non-refoulement claim before she was arrested on 23 August 2016.

(e) There was no threat from the creditor who had only told her sister that on her return he would wait for the Applicant at the airport.

(f) Objective COI show that state/police protection would be available to the Applicant upon her return to the Philippines.

(g) The Adjudicator found no evidence of Torture Risk, BOR 2 Risk, BOR 3 Risk and Persecution Risk.

(h) Internal relocation would be available in the Philippines, a large country with a large population and consists of over 6,000 islands. Being an able-bodied female with 10 years education and 17 years of working experience, it would not be unduly harsh for the Applicant to relocate to large cities with plenty of job opportunities such as Cebu and Manila where it would be difficult for her boyfriend and the creditor to locate her.

Leave for Judicial Review

10.On 15 February 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision with no ground for seeking relief given in the Form. In her supporting affirmation of the same date, the Applicant stated that the decisions of the Director and the Board were wrong as her boyfriend and the creditor would kill her on her return/failure to repay the loan, and the creditor would pay the police and political leaders to cover his wrongdoings. The Applicant further stated that she has no relatives and no money to stay in other areas of the country.

Discussion

11.The role of this Court is supervisory. The assessment of the risk of harm is primarily a matter for the Director and the Board. This Court will not intervene unless there are errors of law or procedural unfairness or irrationality in their decisions. Judicial review is not an avenue for revisiting their assessment in the hope that the Court may consider the matter afresh.

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.

13.In the premises and having considered the Board’s decision with rigorous examination and anxious scrutiny, this Court does not find any error of law or procedural unfairness in it. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

Conclusion

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 11^th day of March 2022

	(Macy Li)
	for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 11 March 2022 Marcellano Maria Cris Pacat Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 11 March 2022 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 10414/18/2/298/F584 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 3043/17 (formerly RBCZ 10360/16) [T6 S135] Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)

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