Salgado Leonida Tamayo v. Torture Claims Appeal Board

HCAL 133/2019

[2022] HKCFI 2370

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 133 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 oral submissions by the Applicant 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 39-year-old national of the Philippines who arrived in Hong Kong on 27 May 2010 with permission to work as a foreign domestic helper until the expiration of her employment contract on 28 December 2012 as extended or within 14 days of its early termination, but when her employment was prematurely terminated on 11 January 2011, she did not depart and instead overstayed in Hong Kong since 26 January 2011, and was arrested by police some 5 months later on 21 June 2011.  After she was referred to the Immigration Department for investigation, she raised a torture claim on the basis that if she returned to the Philippines she would be harmed or killed by her mother’s former boyfriend who had sexually abused and raped her in the past, and after her torture claim was rejected, she then sought non-refoulement protection on the same basis. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Barangay Raniag, Ramon, Isabela, the Philippines by her mother after the separation of her parents. After leaving school she worked as a sales assistant in the dry market in Santiago City of Isabela and Mongeada Tarlac, married her husband in 2005 and moved to live with him in Cabatuan in Isabela where she raised a family with a daughter.

3.In 2007 she left her husband to move back to her mother’s home in Barangay Raniag where her mother was cohabiting with her then boyfriend whom the Applicant regarded as her step-father.

4.On several occasions in the absence of her mother, the Applicant was sexually abused by her mother’s boyfriend, and was threatened by him not to tell anyone or else he would kill her, and on one occasion in 2008 when her mother went out of town for several days, the Applicant was raped by her mother’s boyfriend who then proceeded to beat her and threatened her not to tell her mother or else he would kill her.  

5.After the incident the Applicant left her mother’s home to take shelter in a friend’s place in Santiago City before moving on to Manila, and to avoid any further contact with her mother or her boyfriend, the Applicant made arrangements to leave the Philippines for Hong Kong to work as a foreign domestic helper, which she eventually did on 27 May 2010, and after her employment was prematurely terminated, she was afraid to return to the Philippines, and so she overstayed in Hong Kong and subsequently after her arrest by the police raised her non-refoulement claim for protection, for which she completed a Supplementary Claim Form (“SCF”) on 12 March 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 26 April 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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 substantial grounds for believing that there will be any real and substantial risk of her being harmed or killed by her mother’s boyfriend upon her return to the Philippines as even if her claim of being abused and raped by him in the past is true that there is no evidence that he has ever made any threats against her or to still have any adverse interest in her after all these years since she left the country other than her own speculations, that in any event in the absence of 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 country away from her home district in large cities such as Manila where she had stayed before without incidents and where it would be difficult if not impossible for her mother’s boyfriend to locate her.

8.On 9 May 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 15 August 2018 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 13 November 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board found serious inconsistencies discrepancies and contradictions in the Applicant’s evidence of being raped and threatened by her step-father that it doubted the credibility of her claim of fear of harm from him that caused her to leave the country for Hong Kong, and that even if she had in fact been raped and abused by her mother’s boyfriend but there is simply no evidence even from the Applicant on her own case of any threats from him and whom her mother has subsequently left that it concluded that there is not a genuine or substantial risk of the Applicant being subjected to any harm or ill-treatment from her mother’s former boyfriend or any person upon her return to the Philippines that her claim for non-refoulement protection failed on all applicable grounds.      

10.On 14 January 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 affidavit of the same date she just attached a copy of the decision which she claimed not to agree with but did not provide any reasons or elaboration as to why, nor was she able to do so at the hearing of her application or to put forth any other proper ground for her intended challenge. 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 Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 26 – 63 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, and in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, a decision also confirmed by the Board, I do not find any reasonably arguable basis to challenge the findings of the Board.  

13.The fact is that it has also been correctly established by the Director in his decision that the risk of harm in the Applicant’s claim if true 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 2^nd day of August 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