Marquez Trudiza Cayabas v. Torture Claims Appeal Board

HCAL 2676/2018

[2022] HKCFI 1459

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2676 of 2018

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 the Applicant in open court;

Order by Deputy High Court Judge Bruno Chan:

1.  extension of time be granted for the Applicant’s late Notice of Application for Leave to Apply for Judicial Review; and

2.  leave to apply for Judicial Review be refused.

Observations for the Applicant:

1.extension of time be granted for the Applicant’s late Notice of Application for Leave to Apply for Judicial Review; and

2.The Applicant was born and raised in Ducot Vcab, Itogon Benguet, the Philippines. After leaving school she worked as a farmer in her home village, got married and raised a family with 3 children, and was actively involved in the community work for her fellow villagers before going to Singapore to work as a domestic helper.

3.In 2008 the Applicant returned to the Philippines to resume working as a farmer, and again became involved in her community work for her home village in which she subsequently became one of the community leaders.

4.In 2010 the local village head EM asked her to help him to get re-elected to be the village head again, but as the Applicant found him to be corrupt, she refused to do so, and after EM lost his re-election, he blamed the Applicant for his loss and made threats against her.

5.As a result, the Applicant became fearful for her safety, and so she made arrangements to leave the country by applying to work in Hong Kong as a foreign domestic helper, which she did on 17 July 2010 when she departed for Hong Kong, but on 18 November 2011 she was arrested for theft and was subsequently convicted and sentenced to prison for 12 months, and after her discharge and was transferred to the Immigration Department for deportation, she raised her torture claim, and after it was rejected she then sought non-refoulement protection, for which she completed a Supplementary Claim Form (“SCF”) on 3 December 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

6.By a Notice of Decision dated 27 January 2016 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then remaining applicable grounds other than torture risk including 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”).

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 EM 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 reliable evidence of any real intention of EM to seriously harm or kill the Applicant over their voting dispute and that it is doubtful that he would still have any adverse interest in her after all these years since she left the country, that in any event it was a private personal dispute between the two of 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 100 million people spread across a vast territory of more than 298,000 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 EM to locate her.

8.On 1 June 2017 the Director on his own initiative in writing 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 20 July 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 under the HKBOR including right to life under BOR 2 being violated upon her return to the Philippines.

9.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 which was filed on 11 February 2016, and for which she attended an oral hearing on 5 July 2018 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board, and that she also claimed to be suffering from breast cancer that she needs to stay in Hong Kong for medical treatments which she fears that she would not receive in her home country. On 20 August 2018 her appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence that it doubted her claim of fear of harm from EM that caused her to flee to Hong Kong to seek non-refoulement protection, that in any event it was a private dispute between them 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 move safely to other areas away from her home village without any risk of being located, and that relevant COI shows that she would still receive proper medical treatment for her breast cancer in her home country if refouled that it concluded that her claim for non-refoulement protection failed on all the applicable grounds.

11.On 26 November 2018 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and put forth the following grounds for her intended challenge:

(1)  Misdirection in law in that the Adjudicator misdirected himself on the law by taking into account that the Applicant had to have experienced torture in the past in order to establish substantial grounds to believe that there was a risk of torture in the future;

(2)  Procedural impropriety/unfairness in the Adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of her claim;

(3)  Irrationality in the Adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of her claim;

(4)  Irrationality in the Adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in the Philippines;

(5)  Irrationality in the Adjudicator’s failure to analyze and assess whether state protection exists in the Philippines and misdirected himself as to the extended meaning of state protection;

(6)  Irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(7)  Procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the Applicant;

(8)  Procedural impropriety/unfairness in the Adjudicator applying the incorrect standard of proof in his decision; and

(9)  Procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the Applicant resulting in unfair procedure.  

12.By then the Applicant was also out of time with her application, as Order 53 Rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.

13.As the last day of the three-month period for her to file her Form 86 fell on 20 November 2018, the Applicant was therefore some 6 days late with her application, but taking into account of the time for receiving the decision in the mail and that the Applicant no longer had legal representation from DLS, a delay of a few days in the circumstances cannot on any view be considered as significant, I therefore extended time for her application, and proceeded to consider those proposed grounds for her intended challenge.

14.These are however all just broad and vague assertions of the Applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they apply to her case or how the Board or the Adjudicator had erred in the decision, or in what way did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in her case, or in what way was her legal representation from her assigned lawyer insufficient. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, while the Adjudicator had never misdirected himself as to the required proof of torture as even on the Applicant’s own case that she had never been tortured by anyone in her home country. As such I do not find any of her proposed grounds reasonably arguable for her intended challenge.

15.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.

16.The only other complaint which the Applicant appeared to have made with any elaboration was about the hearing bundle being provided to her only a few days before her appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given her insufficient time to prepare for her appeal.

17.Even if it is true that the hearing bundle indeed came to her late as alleged, and the Applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including her SCF, records of her screening interviews and the Director’s decisions should be well familiar to the Applicant as they had earlier all been made available to her when she still had legal representation from DLS, whilst her SCF was completed on her own instructions with legal assistance, and the fact that she is capable of reading and understanding English having used and communicated in the language in her jobs and living in both Singapore and Hong Kong for years without problems, and that at her oral hearing she never raised any issue or requested the Adjudicator for further time to enable her to better prepare for her appeal. Accordingly I do not find anything amiss arising from the hearing bundle for the Applicant in her appeal before the Board either.

18.Furthermore, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm from EM 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.                

19.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.

20.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 27^th day of May 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