Gallarte Nora Puyo v. Torture Claims Appeal Board

HCAL 1185/2019

[2022] HKCFI 2979

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo 1185 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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 50-year-old national of the Philippines who arrived in Hong Kong on 4 February 2016 as a visitor with permission to remain up to 18 February 2016 when she did not depart and instead overstayed, and on 2 March 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 domestic disputes. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in San Jose, Bula, Camarines Sur, the Philippines. After leaving school she worked as a domestic helper in Manila until 1993 when she married her husband and moved back to her home district in Bula to raise a family with 8 children.

3.In 1996 they moved to Manila where her husband engaged in construction work, but soon he started to indulge in alcohol and drugs, and when drunk he would be abusive and violent towards the Applicant.

4.In 2014 the Applicant found it no longer tolerable living with her husband, and moved with her children back to her mother’s home in Bula.

5.However, one day in February 2015 her husband came to her home to demand the Applicant and the children to return with him to Manila, and when the Applicant refused, he threatened to kill her and the children. Eventually he left but threatened that next time when he returned, he would really kill her if she still refused to move back with him.

6.Fearing for her life, the Applicant then fled to Rizal in Manila where she worked as a manicurist, but later when she was told by her mother that her husband was looking for her everywhere, she departed the Philippines on 4 February 2016 for Hong Kong where she subsequently overstayed 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”).

7.By a Notice of Decision dated 29 January 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”).

8.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 she would be in danger of being harmed or killed by her husband upon her return to the Philippines 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, that in any even tit was a private domestic dispute between 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 country away from her home district in large cities such as Cebu where it would be difficult if not impossible for her husband to locate her.

9.On 9 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 March 2019 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 17 April 2019 her appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board accepted the Applicant’s evidence as to her domestic disputes with her husband as asserted but found no evidence of any real intention of her husband to seriously harm or kill her or that she still has any real fear of him, and that in any even it was a private domestic dispute between the two of them without any state or official involvement that state or 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 away from her home district without any risk of being located by her husband that her claim for non-refoulement protection failed on all applicable grounds.

11.On 3 May 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 just repeated her claim as before but without putting forward any proper ground 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.

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 been established by both the Director and the Board in their respective decision 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: see TK v Jenkins & Anor [2013] 1 HKC 526.

14.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.Furthermore, the Applicant recently on 22 August 2022 filed an affirmation requesting to withdraw her case as she now wants to return to her home country.

16.In the premises, as I am for the reasons given not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and given her latest confirmation of her wish to return to her home country, I accordingly dismiss her leave application.

Dated the 29^th day of September 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