Ballesteros Shirley Maglalang v. Torture Claims Appeal Board

HCAL 1194/2019

[2023] HKCFI 1015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1194 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 53-year-old national of the Philippines who last arrived in Hong Kong on 13 October 2008 as a visitor with permission to remain as such up to 3 November 2008 when she did not depart and instead overstayed, during which she had an extramarital affair with another Filipino man and became pregnant with their child in 2012, and on 7 November 2012 she surrendered to the Immigration Department and was charged and convicted of the offence of breaching the conditions of stay for which she was subsequently sentenced to prison for 4 months, during which she gave birth to her daughter. Upon her release from prison and was referred to the Immigration Department for deportation, she then raised a non-refoulement claim on the basis that if she returned to the Philippines she would be harmed or killed by her husband over her said extramarital affair in Hong Kong. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Solano Nueva, Viscaya, the Philippines. After leaving school she married her husband and raised 2 children in her home village.

3.To help out with her family’s finance as her husband was often unable to hold down any job due to his gambling addiction, the Applicant in 1995 started to come to Hong Kong to work as a foreign domestic helper by remitting her salaries to her husband to support their family in the Philippines.

4.After the termination of her last employment in September 2007, the Applicant returned to the Philippines, but as her husband was still unable to have any job and just relied on her, the Applicant on 13 October 2008 returned to Hong Kong as a visitor to look for employments, and subsequently overstayed during which she met another Filippo man and formed a relationship with him.

5.After becoming pregnant from that relationship in 2012, the Applicant surrendered to the Immigration Department and subsequently gave birth to their daughter, but when the news reached her family in the Philippines, her husband threatened to kill her over her affair if she returned to the Philippines, and so the Applicant raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 21 October 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 29 April 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”).

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 it was in any event 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 107 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 her husband to locate her.

8.On 12 May 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 24 February 2017 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board found no reliable evidence of any real threats from her husband to harm or kill her upon her return to the Philippines, and that in any event it was a private domestic dispute between the 2 of them without any official involvement that state/police protection would be available to her 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.Meanwhile on 31 March 2017 the Director 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 by a Notice of Further Decision dated 5 July 2017 the Director also rejected her BOR 2 Claim upon finding that the factual basis of her claim clearly did not engage the BOR 2 Risk, and that she had failed to establish a personal and real risk of being arbitrarily deprived of her right to life in violation of BOR 2 upon her return to the Philippines.

11.On 18 July 2017 the Applicant again appealed to the Board against the Director’s Further Decision, and for which she attended another oral hearing on 19 February 2019 before the Board during which she again gave evidence and answered questions raised of her claim by the same Adjudicator for the Board. On 18 April 2019 her appeal was again dismissed by the Board which also confirmed the Director’s Further Decision upon finding similarly as before that state protection and internal relocation would be available to her to negate any such risk of her BOR 2 being violated upon her return to the Philippines.

12.On 6 May 2019 the Applicant filed her Form 86 for leave to apply for judicial review of both decisions of the Board, but no ground for seeking relief was given in her Form or in her supporting affirmation to which she just attached the entire hearing bundle for her appeal to the Board without putting forth any proper ground for her intended challenge, or any explanation for her serious delay to challenge the earlier first decision  of the Board for being seriously outside the 3-month period required by Order 53 rule 4(1) of the Rules of the High Court for the filing of an application for judicial review, 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 decisions being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge of either decision of the Board, or any merits in her seriously late intended application as regard its earlier decision.

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 decisions 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 as regard either decisions of the Board.

Dated the 20^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