Madriaga Nenita Magapan v. Torture Claims Appeal Board

HCAL 597/2019

[2023] HKCFI 503

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 597 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 66-year-old national of the Philippines who last arrived in Hong Kong on 29 May 2005 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 2 June 2006, but when her employment contract was completed, she did not depart and instead overstayed in Hong Kong, and was subsequently arrested by police more than 10 years later on 10 November 2016. 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 the outlawed guerrilla group New People’s Army (“NPA”) for quitting them back in 1993. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Bantay Iloco Sur, the Philippines. After leaving school she worked as a domestic helper in her home district, and married her husband who was then a member of NPA, and which she later also joined in 1990 under the influence of her husband.

3.After joining NPA, the Applicant however never participated in any of their activities against the government as she soon came to Hong Kong in the same year to work as a foreign domestic helper.

4.In 1993 as she intended to continue to work in Hong Kong and saw no point in remaining with the group, and so during her return to the Philippines on her annual leave, the Applicant made her request to quit the group to a local leader of NPA, but she was refused and was instead warned to quit her job in Hong Kong and to return to the Philippines to participate in their insurgencies against the government, as otherwise there would to be serious consequences to her and her family.

5.Thereafter the Applicant returned to Hong Kong to continue with her employment, and during her regular returns to the Philippines for holiday for the next 10 years, she never encountered any threats or problem from the NPA.

6.However, in 2006 while in Hong Kong she was informed by her husband’s nephew that her husband had been killed by the NPA due to her failure to heed their warning to return to the Philippines to participate in their insurgency activities, and was warned that she would be killed as well upon her return, and so when her last employment contract expired in August 2006, she was afraid to return to the Philippines and therefore overstayed in Hong Kong, and after her subsequent arrest by the police in November 2016, she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 26 June 2018 and attended screening interview before the Immigration Department with legal representation.

7.By a Notice of Decision dated 11 July 2018 the Director of Immigration (“The 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 assessed the level of risk of harm from the NPA people 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 that her husband had been killed by the NPA people or of any threats against her during her regular returns to her home district during her annual leave, that whatever adverse interest the NPA might have in her would have been evaporated all these years during her absence from the country, that in any event 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 it would be difficult if not impossible for anyone to locate her.

9.On 24 July 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which she attended an oral hearing on 12 November 2018 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 20 February 2019 her appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board found even on the factual basis of the Applicant’s own case that between her returns to the Philippines from 1993 to 2006 that no threats from NPA or anything eventful had ever happened to her in any of those occasions, nor is there any reliable evidence of her husband being killed by NPA or of any threats against her as alleged, and that in any event given that NPA is regarded as a terrorist group by the Philippines government 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 anyone that her claim for non-refoulement protection failed on all applicable rounds.

11.On 4 March 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her supporting affirmation of the same date she put forward the following grounds for her intended challenge:

(1)  Procedural impropriety in failing to properly apply para 2 of the UN committee against Torture General Comment No. 2 whereby satisfaction of a national state obligations to conduct sufficient due diligence requires that reforms and means of relief introduced must be effective, and that in any the decision of the Board which focused on whether such reliefs showed merely signs of positive improvement;

(2)  Procedural impropriety in failing to conduct sufficient inquiry into the relevant COI;

(3)  Procedural impropriety/irrationality in failing to provide reasons for the assessment of lack of BOR 3 risk and/or sufficient basis to support its conclusion of lack of BOR 3 risk;

(4)  Error/misdirection in law in failing to take into account the considerations of psychological strain and threats to the Applicant personally or threats directly to kill her;

(5)  Procedural impropriety in failing to consider the Applicant’s fear properly that the NPA still continue their action in the Philippines that they would not let anyone go who had betrayed their organization that after having killed the Applicant’s husband that they will target the Applicant and hence her fear is still real and substantial under the current situations in her home country;

(6)  That there is no sufficient basis for the Board to conclude that the Applicant would not be at risk of being subjected to torture and/or CIDTP upon refoulement to her home country.

12.These are however all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they would apply to her case or how the Board or the Adjudicator had erred in the decision, or in what way did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI. None of these assertions were elaborated or presented with any relevant particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable 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 it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s 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.

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 19^th day of April 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