Alpajando Joan Halasan v. Torture Claims Appeal Board

HCAL 373/2019

[2022] HKCFI 1001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 373 of 2019

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 46-year-old national of the Philippines who last arrived in Hong Kong on 16 December 2011 with permission to work as a foreign domestic helper until the expiration of her employment contract on 16 December 2013 or within 14 days of its early termination, but when her employment was terminated on 10 March 2013 after she was arrested by police for theft and for which she was subsequently convicted and sentenced to prison, and upon her discharge from prison and was referred to the Immigration Department for deportation, she raised a non-refoulement claim on the basis that if she returned to the Philippines she would be harmed or killed by the terrorist group New People’s Army (“NPA”) for quitting the group. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Polomolok, South Cotabato Province of the Philippines. After leaving school she worked as a domestic helper in Singapore before returning to her home district in 2000 to marry her husband and raised a family with 2 children, and later worked in a pineapple plantation company.

3.Her father used to be a NPA member involved in their guerilla warfare against the Philippine government, but in 2008 when he was no longer able to serve due to poor health, the group sent some members to his home to demand the Applicant to take his place, and forced her to receive trainings in their secret compound.       

4.Eventually, the Applicant was able to flee to Laguna where she made arrangements to leave the Philippines for Hong Kong to work as a foreign domestic helper, which she did on 18 December 2009, during which she was told by her family that the NPA people were looking for her everywhere, and hence when her last employment was terminated on 10 March 2013 after she was arrested for theft, and upon her discharge from prison and facing deportation, she was afraid to return to the Philippines as she feared of being harmed or killed by the NPA people, and so she raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 12 March 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

5.By a Notice of Decision dated 14 May 2015 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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 the NPA people upon her return to the Philippines as low due to the absence of or low intensity and frequency of past ill-treatment from them, that the Applicant was then just a reluctant new recruit without any special skill or reputation that it is doubtful that there would still be any interest in her after all these years, that in any event NPA is considered as a terrorist group by the Philippine government 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 107 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 the NPA people to locate her.

7.On 18 May 2017 the Director on his own initiative invited the Applicant to submit any additional facts which may be relevant to her non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”), and in the absence of any response from her, the Director by a Notice of Further Decision dated 6 June 2017 also rejected the Applicant’s BOR 2 Claim upon finding that she had failed to establish a personal and real risk of her absolute and non-derogable rights including right to life under BOR 2 being violated upon her return to the Philippines.

8.By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“Board”) against the earlier decision of the Director, the notice of appeal which was filed on 27 May 2015, and for which she attended an oral hearing on 8 October 2018 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 30 January 2019 her appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.In its decision the Board accepted the Applicant’s claim of past experiences with the NPA but found no reliable evidence of any real intention of them to seriously harm or kill her for quitting the group other than hearsays information and her own speculations, that after all these years since she left the country that it is doubtful that there would still be any adverse interest in her, and as NPA is regarded by the Philippine government as a terrorist group 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 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. 

10.On 11 February 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 affirmation of the same date she merely stated that she rejects the decision as it disregarded her dangerous situation but without providing any details or particulars as to how it did so or putting forward any proper grounds 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.

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 correctly established by both the Director and the Board in their respective decisions that state/police protection would be available to protect her from the terrorist group NPA, and that their risk if still exists after all these years would be a localized one and that it would not be unreasonable or unsafe for the Applicant 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 7^th day of April 2022.

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