Pascua Michelle Enriquez and Another v. Torture Claims Appeal Board

HCAL 435/2021

[2023] HKCFI 1734

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 435 OF 2021

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 / 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 Applicants:

1.The Applicants are mother and son respectively aged 52 and 25 years and nationals of the Philippines who arrived in Hong Kong on 16 October 2019 as visitors with permission to remain as such up to 30 October 2019 when they did not depart and instead overstayed, and on 1 November 2019 they surrendered to the Immigration Department and jointly raised a non-refoulement claim on the basis that if they returned to the Philippines they would be harmed or killed by their church Iglesia ni Cristo (Church of Christ) (“INC”) for having criticized the Church over wrong doings of their leadership. They were subsequently released on recognizance pending the determination of their claim.

2.The 1^st Applicant (“A1”), the mother, was born and raised in Cebu City, the Philippines. After leaving school she worked as a school teacher, and after marrying her husband, she moved to his home district in Quezon City where they raised a family with 2 children, a daughter and a son, the 2^nd Applicant (“A2”).

3.A1 and her family were devoted Christians of INC where she worked as a financial officer for more than 10 years, but one day in February 2013 she was suddenly dismissed from her employment by the Church and the family was kicked out of the living quarter provided by the Church for having criticized the INC leadership over suspected corruptions within the Church.

4.After some members of the Church had died or disappeared in mysterious circumstances, and when she started to receive scary messages, A1 became concerned for the safety of her family and moved with her children to Muntinlupa City, and in late 2018 they departed for Vietnam where they stayed for more than 10 months without incidents, and after her daughter had left for another country, A1 and A2 then travelled to Hong Kong on 16 October 2019 where they subsequently overstayed and raised their non-refoulement claim for protection, for which they jointly completed a Non-refoulement Claim Form (“NCF”) on 12 March 2020 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 17 June 2020 the Director of Immigration (“Director”) rejected the Applicants’ claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of their 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”).

6.In his decision the Director took into account of all the relevant circumstances of the Applicants’ claim and assessed the level of risk of harm from INC upon their 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 evidence of any further adverse interest of the Church in the Applicants after having driven them out of the Church and since all these years after they had left the country, that in any event it was a private dispute between A1 and the Church without any state or official involvement that state or police protection would be available to the Applicants 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 109 million people spread across a vast territory of more than 300,000 square kilometers that it would not be unduly harsh for the Applicants as able-bodied adults with working experience to move to other areas of the country away from their home district in large cities such as Cebu or Davao where it would be difficult if not impossible for anyone to locate them.

7.On 30 June 2020 the Applicants lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which they attended an oral hearing on 30 October 2020 before the Board during which they gave evidence and answered questions raised of their claim by the Adjudicator for the Board. On 25 February 2021 their appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board accepted the Applicants’ claim of A1’s dispute with INC which caused her to lose her job and their accommodation but found no evidence of any real threats and further adverse from the Church against her or her family, and that in the absence of any state or official involvement that police protection would be available to them upon their return to the Philippines as well as reasonable internal relocation for them to move safely to other part of the country away from their home district without any risk of being located that their claim for non-refoulement protection failed on all applicable grounds.

9.On 26 March 2021 the Applicants filed their Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in their Form or supporting affirmation of the same date in which they just stated that “the decision was unreasonably made” but without providing any details or particulars or elaboration as to how it was so or put forward any proper ground for their intended challenge, nor did they request any oral hearing for their application. As such and in the absence of any error of law or irrationality or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis for their intended challenge.

10.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.

11.In the Applicants’ 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 their claim if real is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of the Philippines, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

12.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 Applicants’ claim.

13.Furthermore, the Applicants recently filed an affirmation requesting to withdraw their application without providing any further details or reasons for their request.

14.In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review, and in view of their request to withdraw their application, I accordingly dismiss their leave application.

Dated the 5^th day of July 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