Opguar Natalyn Palaganas v. Torture Claims Appeal Board

HCAL 3547/2019

[2022] HKCFI 3450

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3547 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 36-year-old national of the Philippines who arrived in Hong Kong on 16 February 2011 with permission to work as a foreign domestic helper until the expiration of her employment contract or within 14 days of its early termination, but when her employment was prematurely terminated on 6 February 2013, she did not depart and instead overstayed, and was arrested some 7 months later on 27 September 2013. After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim on the basis that if she returned to the Philippines she would be harmed or killed by a friend of her father for refusing to marry his son and/or by her own family over her conversion of her religion from Christianity to Islam. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised as a Christian in Marikina, Metro Manila, the Philippines. After leaving school she worked in Dubai as a domestic helper before coming to Hong Kong in 2011 to work as a foreign domestic helper.

3.Shortly after her employment contract was terminated in February 2013 and that she had overstayed in Hong Kong, the Applicant was asked by her family to return to the Philippines to marry the son of her father’s friend Sanchez, but when she refused as she already had a Muslim boyfriend in Hong Kong, she was later told by her friend that Sanchez and his son were furious with her and had threatened to kill her if she returned to the Philippines, and also by her sister that her family was upset by her conversion of her religion from Christianity to that of her boyfriend as a Muslim.

4.After she was subsequently arrested for overstaying in Hong Kong, the Applicant was afraid of being harmed or killed by Sanchez or his son or her family if refoueld to the Philippines, and so she raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 6 June 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 12 October 2015 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), 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”).

6.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 Sanchez or his son or her own family upon her return to the Philippines as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no reliable evidence of any real intention of them to harm or kill her, that in any event they were private personal disputes 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 101 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 it would be difficult if not impossible for anyone to locate her.

7.On 26 October 2015 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 4 August 2016 before the Board during which she gave oral evidence and answered questions raised of her claim by the Adjudicator for the Board. On 7 December 2016 her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board found no reliable evidence of any real threats from Sanchez or his son or her own family to harm the Applicant over her refusal to marry Sanchez’s son or her religion conversion from Christianity to Islam, and that in any event they were private personal disputes 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 away from her home district without any risk of being located by anyone that her claim for non-refoulement protection failed on all applicable grounds.

9.Meanwhile on 10 March 2017 the Director on his own initiative 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 new or additional facts or information from her other than a regurgitation of her claim as before, the Director by a Notice of Further Decision dated 31 March 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.

10.On 2 May 2017 the Applicant again lodged an appeal to the Board against the Director’s Further Decision, for which the Board did not find it necessary to conduct a further oral hearing and proceeded to deal with her appeal in the absence of the Applicant and on paper, and on 30 October 2019 it again dismissed her appeal and confirmed the Director’s Further Decision.

11.In its decision the Board found the factual basis for the Applicant’s BOR 2 Claim the same as for her claim under the other applicable grounds which had all been rejected in its earlier decision based on the totality of her evidence previously given, and concluded that the Applicant had failed to establish any substantial or strong grounds for believing that her right to life or any other absolute or non-derogable rights under the HKBOR would be infringed or violated upon her return to the Philippines.

12.On 29 November 2019 the Applicant filed her Form 86 for leave to apply for judicial review of this second decision of the Board, but no ground for seeking relief was given in her Form or in her supporting affirmation of the same date in which she just repeated her claim as before but without putting forward any 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.

13.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.

14.In the Applicant’s case, the fact is that even based on her own case at the highest that her claim simply did not engage the BOR 2 ground on its limited scope, and that it has also been correctly established by both the Director and the Board in their earlier decisions that the risk of harm in her claim even if real 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 under any of the applicable grounds: see TK v Jenkins & Anor [2013] 1 HKC 526.

15.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 under any of the applicable grounds.

16.Furthermore, the Applicant recently on 16 September 2022 filed an affirmation requesting to withdraw her application as all her problems have now been resolved that she wants to return to her home country as soon as possible.

17.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 that all her problems in her home country have been resolved, I accordingly dismiss her leave application.

Dated the 14^th day of November 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