Calip Myrna Jacob v. Torture Claims Appeal Board

HCAL 622/2019

[2022] HKCFI 3203

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 622 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:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 54-year-old national of the Philippines who last arrived in Hong Kong on 16 November 2008 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 28 December 2009 or within 14 days of its early termination, but when it was prematurely terminated on 5 December 2009, she did not depart and instead overstayed in Hong Kong, and was arrested by police on 29 August 2010. 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 abusive husband over their monetary disputes, and after her torture claim was rejected, she then sought non-refoulemnent 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 Cabugao City, Ilocos Sur Province, the Philippines. After leaving school she worked in various jobs, and later married her husband and raised a family with 3 children in West Rambo, Makati, Manila.

3.In 2001 she first came to Hong Kong to work as a foreign domestic helper, remitting part of her monthly salary to her husband for the support of their family.

4.In late 2008 her husband asked her on the phone for additional money for the repair of their house in Manila, but as she did not have the means to do so, he became furious with her and threatened to kill her if she returned to Manila, and to avoid further threats and harassments from her husband, the Applicant in December 2008 changed her telephone number and ceased all contact with him.

5.However, after her last employment contract was terminated on 5 December 2009, she was afraid to return to the Philippines, and so she overstayed in Hong Kong, and upon her subsequent arrest by the police, she raised her torture claim, and after it was rejected by the Immigration Department, she then sought non-refoulement protection, for which she completed a Supplementary Claim Form (“SCF”) on 19 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 26 February 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 assessed the level of risk of harm from her husband upon her return to the Philippines as low due to the absence of or low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of her husband to seriously harm or kill her or any reason for him to still have any adverse interest in her after all these years since their last contact in December 2008, that in any event it was a private domestic or monetary 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 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 Quezon City where it would be difficult if not impossible for her husband to locate her.

8.On 12 March 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 25 July 2018 before the Board during which she gave oral evidence and answered questions raised of her claim by the Adjudicator for the Board. On 31 December 2018 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board accepted the Applicant’s evidence of her fear of threats from her husband over their monetary disputes but found in the absence of any state or official involvement in their private dispute that state/police protection would be available to the Applicant if needed 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.  

10.On 5 March 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 attached copy of the decision and other documents from her appeal bundle to the Board but without putting forth 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.

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 earlier decisions 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 Pakistan, 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 on all applicable grounds.

14.For the reasons given, I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and accordingly refuse her leave application.

Dated the 21^st day of October 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