Balingasa Edna Bagacina v. Torture Claims Appeal Board

HCAL 184/2019

[2022] HKCFI 2247

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 184 of 2019

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 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 42-year-old national of the Philippines who last arrived in Hong Kong on 24 November 2010 with permission to work as a foreign domestic helper until the expiration of her employment contract on 24 November 2012 or within 14 days of its early termination, but when her employment was prematurely terminated on 18 March 2011, she did not depart and instead overstayed in Hong Kong, and more than 5 years later on 14 July 2016 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 her abusive husband over their family disputes. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Iriga City, Camarines Sur, the Philippines. After leaving school she married her husband and moved to his home in Village Fabrica Bula in the same district where she raised a family with 3 children.

3.In 2001 her husband started to pick up bad habits such as drinking and gambling, and after getting drunk or losing money in gambling, he would become abusive towards the Applicant by punching and kicking her at will.

4.When her children became older and to avoid further abuses from her husband, the Applicant departed the Philippines in March 2010 for Hong Kong to work as a foreign domestic helper.

5.In September 2010 she returned to the Philippines and decided to leave her husband and their marriage by moving the children to her mother’s place, but for which her husband became furious and threatened to kill her with a knife, which caused her great fear that she fled the country again for Hong Kong In November 2010 to resume her job as a foreign domestic helper, and when her last employment was prematurely terminated on 18 March 2011, she was afraid to return to the Philippines, and so she overstayed in Hong Kong, and more than 5 years later on 14 July 2016 she surrendered to the Immigration Department and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 5 January 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

6.By a Notice of Decision dated 7 February 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”).

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 husband 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 evidence of any real intention of him to seriously harm or kill her over their domestic issues, that in any event it was a private domestic 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 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 Manila where it would be difficult if not impossible for her husband to locate her.

8.On 14 February 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 13 November 2018 before the Board during which she gave evidence and answered questions raised of her claim the Adjudicator for the Board. On 14 January 2019 her appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence as to her claimed fear of harm from her husband for fleeing the country for Hong Kong that it doubted the credibility of her claim which is further undermined by her failure to raise it upon her first return to Hong Kong until more than 5 years later, that it was not accepted that her husband had any real intention of seriously harming or killing her or to still have any adverse interest in her after all these years, and that in any event it was a private domestic dispute between the two of 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 part of the country without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.      

10.On 21 January 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her supporting affidavit of the same date she put forth the following grounds for her intended challenge:

(1) Procedural impropriety in the Board’s failure to apply para 2 of the UN committee against Torture General Comment No.2 whereby satisfaction of a National states obligation to conduct sufficient due diligence requires that reforms and means of relief introduced must be effective in any event, cf, the decisions of the Board and the Director which focused on whether such reliefs showed merely signs of positive improvement;

(2) Procedural impropriety in the Board’s failure to conduct sufficient inquiry into the relevant COI;

(3) Procedural impropriety/irrationality in the Board’s failure to provide reasons for its assessment of the lack of BOR 3 risk or sufficient basis to support such conclusion;

(4) Error or misdirection in law in the Board’s failure to take into account the considerations of psychological strain and threats to the Applicant personally or threats to her directly to kill her; and

(5) That there was no sufficient basis for the Board to conclude that the Applicant would not be at risk of being subjected to torture and/or CIDTP upon refoulement to her home country.  

11.These are however all just broad and vague assertions of the Applicant containing several 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 how did it fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or in what way would BOR 2 be relevant to her claim which was based even on her own case just a domestic dispute between her and her husband without any official involvement that it simply did not engage the BOR 2 ground in its limited scope, and that it is simply factually incorrect for her to complain that the Board had failed to give sufficient reasons or basis for its determination of her claim when it clearly did so in its detailed analysis and reasoning as set out in paragraphs 66 – 74 of the decision. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for her intended challenge.

12.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.

13.In the Applicant’s case, the fact is that it has also been correctly established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s 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.                

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 25^th day of July 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