Malcat Ginalyn Hortizuela v. Torture Claims Appeal Board

HCAL 1751/2019

[2023] HKCFI 2361

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1751 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 / 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 Applicant:

1.The Applicant is a 38-year-old national of the Philippines who first arrived in Hong Kong on 1 November 2013 with permission to work as a foreign domestic helper until the expiration of her employment contract or within 14 days of its early termination, but when her last employment was prematurely terminated on 14 February 2016, and after her visa as a visitor expired on 21 November 2016, she failed to depart and instead overstayed in Hong Kong, was arrested by police some 6 months later on 7 May 2017. 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 uncle who had earlier raped her sister and had tried to rape her. 

2.The Applicant was born in Sta Lucia Ilocos Sur, the Philippines and raised in Homstead, Bambang, Nueva Vizcaya, got married and raised a family with 2 children.

3.In 2012 her sister was raped by her uncle who was a local police officer, and after having told the Applicant, her sister later committed suicide.

4.After the Applicant had reported the matter to the police, her uncle came to her home to threaten her and tried to rape her too, but the Applicant managed to fight him off, and before he left her uncle warned her not to tell anyone or else he would kill her.    

5.Fearing for her life, the Applicant decided to leave the country by applying to work in Hong Kong as a foreign domestic helper, which she subsequently did in November 2013, during which her uncle kept looking for her everywhere, and after her last employment was terminated in 2016, she was afraid to return to the Philippines and so she overstayed in Hong Kong, and upon her arrest by the police she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 17 January 2018 and attended screening interview before the Immigration Department with legal representation.             

6.By a Notice of Decision dated 12 February 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”).

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 uncle upon her return to the Philippines as low due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of her uncle to seriously harm or kill her other than to scare her from reporting his acts to the police, that in the absence of 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 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 areas of the country away from her home district in large cities such as Manila where it would be difficult if not impossible for her uncle to locate her.

8.On 20 February 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 21 February 2019 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 11 June 2019 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board found material inconsistencies contradictions and vagueness in the Applicant’s evidence that it rejected her claim of having been harassed or threatened or assaulted by her uncle as alleged that it concluded that she had invented and fabricated the core of her case so as to establish a claim for non-refoulement protection, and that it is not accepted that she would be subjected to any harm or ill-treatment of any sort by anyone if refouled to her home country that her claim for non-refoulement protection failed and was rejected on all applicable grounds.    

10.On 25 June 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her Form and supporting affirmation of the same date she put forward various grounds for her intended challenge which can be summarized as follows:

(1) Procedural unfairness in that the Board had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirements;

(2) Procedural unfairness in that the Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(3) Procedurally unfairness in that the Board’s decision to refuse the Applicant’s appeal was unreasonable or irrational in the public law sense or the result of procedural error or unfairness;

(4) Procedural unfairness in that the Board failed to meet the greater care and duty owed to a self-represented litigant;

(5) That the Applicant was not given an opportunity to put forward her submissions during her appeal hearing before the Board nor was she invited to do so which was procedurally unfair to the Applicant;

(6) That the Board had significantly relied on source of news or COI not officially recognized or were simply hearsay or outdated which led to its groundless speculations that it would be safe for the Applicant to return to her home country.     

11.These are however all just some broad and vague assertions of the Applicant containing a few key words or phrases but without any necessary or relevant particulars or specifics or elaborations as to how they apply to her case or how the Board or the Adjudicator had erred in the decision, or in what way did the Board unlawfully fetter its discretion or that the Adjudicator act in a procedurally unfair manner or that the decision was unreasonable or irrational, or what source of news or COI relied on by the Board that were not officially recognized or were simply hearsay or outdated, while the record clearly shows that the Applicant was invited by the Board to make her submissions and representations for her claim during her appeal hearing before the Board and that she was able to do so without any problem. As such, and as none of these assertions were elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable 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 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.

13.In the Applicant’s case, the Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 24 – 67 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.  

14.The fact is that it has also been 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.                 

15.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.Moreover, the Applicant recently on 21 August 2023 wrote to the Court requesting to withdraw her application as her problem in her home country has been settled and that it is nor safe for her to return to the Philippines.

17.In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of her latest confirmation that it is now safe for her to return to her home country, I accordingly dismiss her leave application.

Dated the 19^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