Oriao Jeania Picpican v. Torture Claims Appeal Board

HCAL 1475/2019

[2023] HKCFI 2259

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1475 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 33-year-old national of the Philippines who last arrived in Hong Kong on 31 May 2015 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 31 March 2017 or within 14 days of its early termination, but when her employment contract was prematurely terminated on 13 September 2015, she did not depart and instead overstayed in Hong Kong, and was arrested by police on 9 October 2015. 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 her former boyfriend’s family who blamed her for breaking up with him that caused him to commit suicide. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Abiang, Atok, Benguet, the Philippines.  After leaving school she worked as a teacher, and dated her former boyfriend for some 5 years.

3.In 2015 the Applicant came to Hong Kong to work as a foreign domestic helper, during which she for some reason decided to put an end to her relationship with her former boyfriend who subsequently committed suicide, and for which his family blamed the Applicant and threatened to take revenge against her should she return to the Philippines.

4.As a result, after her employment was terminated in September 2015, the Applicant was afraid to return to the Philippines, and so she overstayed in Hong Kong, and upon her subsequent arrest by the police she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 24 January 2018, and attended screening interviews before the Immigration Department with legal representation.

5.By a Notice of Decision dated 8 March 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”).

6.In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real risk of her being harmed or killed by her former boyfriend’s family 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 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 100 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 23 March 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, for which she attended an oral hearing 20 March 2019 before the Board during which she gave oral evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 24 May 2019 her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board found significant inconsistencies discrepancies and contradictions in the Applicant’s evidence that it doubted the credibility of her claim of fear of harm from the her former boyfriend’s family that caused her to overstay in Hong Kong, which was further undermined by her failure to raise her claim until after her arrest by the police, and concluded that it was not satisfied that the Applicant faces any real risk of harm of any sort upon her return to the Philippines in the reasonably foreseeable future for any of her claimed reasons that her claim for non-refoulement protection failed on all applicable grounds.

9.On 30 May 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 or in her supporting affidavit of the same date to which she just attached a copy of the Board’s decision but without putting forth any proper ground for her intended challenge, 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.

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 Applicant’s case, the Board essentially rejected her claim on its adverse finding on her credibility for the detailed and thorough analysis and reasoning set out in paragraphs 18 – 47  of its decision with the benefit of hearing her in her oral evidence and her 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 finding of the Board.

12.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 real 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.                

13.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.

14.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 4^th day of September 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