Perez Maria Exuperia v. Torture Claims Appeal Board

HCAL 631/2019

[2023] HKCFI 127

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 631 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 1 December 2016 as a visitor with permission to remain up to 15 December 2016 when she did not depart and instead overstayed, and on 6 January 2017 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 the tenants of her property in her home district or their followers over their renting dispute. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Madamba Cataingan, the Philippines. After leaving school she worked as a shop assistant, got married and raised a family with 3 children in her home district.

3.In 1994 she came to Hong Kong to work as a foreign domestic helper before moving on to Abu Dhabi to also work as a domestic helper until 2010 when she returned to her home in the Philippines.

4.In February 2016 she and her husband let out their property to a couple for rental income, but later in the year when they heard that their tenants had been selling illegal drugs from their property, the Applicant and her husband confronted their tenants and tried to terminate their tenancy, which led to a big quarrel between them.

5.Several days later some gangsters threw a stone through the window of the Applicant’s home shattering the window’s glasses and injuring her younger son, and when the Applicant went outside to confront them, the gang leader intimidated her by firing a shot with his gun to the sky, and warned her to leave the tenants alone or else she and her husband would be killed.

6.Believing that those gangsters were sent by the tenants to threaten her to stop evicting them from her property, the Applicant became fearful for her life and so on 1 December 2016 she and her husband departed the Philippines for Hong Kong where they subsequently overstayed and separately raised their non-refoulement claim for protection, and for her own claim the Applicant completed a Non-refoulement Claim Form (“NCF”) on 16 April 2018 and attended screening interview before the Immigration Department with legal representation.

7.By a Notice of Decision dated 31 May 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 ground for believing that there will be any real risk of her being harmed or killed by her tenants or those gangsters upon her return to the Philippines due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill her, that in any event it was a private rental dispute between them without any official involvement that state or police protection would be available to the Applicant if resorted to upon her return to the Philippines, 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 or Cebu where it would be difficult if not impossible for anyone to locate her.

9.On 11 June 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 11 December 2018 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 21 February 2019 her appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board found the Applicant’s evidence as to her claim as to her tenants selling drugs which caused their renting dispute and the subsequent threats from those gangsters vague, confused and puzzling that it doubted the credibility of her claim of fear of harm from them that caused her to leave the country with her husband for Hong Kong, and that she has fabricated the entirety of her claim for overstaying in Hong Kong and that her claimed fear of returning to her home country as not genuine, and concluded that she does not face any risk of any sort upon her return to the Philippines that her claim for non-refoulement protection in Hong Kong failed on all applicable grounds.

11.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 affidavit filed on the same day she merely stated that she rejects the decision as it disregarded her dangerous situation but without putting forth any details or particulars or elaboration as to how it did so, 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 her 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 Board rejected her claim essentially on its adverse findings on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 27 – 36 of its decision with the benefit of hearing her in oral evidence and 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, I do not find any reasonably arguable basis to challenge the findings of the Board.

14.Furthermore, 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, a decision also confirmed by the Board, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

15.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.

16.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 13^th day of January 2023.

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