Matre Faith Grace Gayyaman v. Torture Claims Appeal Board

HCAL 1477/2019

[2023] HKCFI 2389

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1477 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:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 35-year-old national of the Philippines who last departed Hong Kong in April 2016 for Mainland China after her last employment as a foreign domestic helper was terminated on 27 March 2016, but returned to Hong Kong on 2 June 2016 as a visitor with permission to remain as such up to 16 June 2016 when she did not depart and instead overstayed, and on 23 June 2016 she surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if she returned to the Philippines she would be harmed or killed by members of the outlawed guerrilla group New People’s Army (“NPA”) for refusing to join them.  She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Tanudan, Kalinga, the Philippines.  After leaving school she worked as salesperson, got married and raised a family with a daughter in her home district.

3.In June 2012, the Applicant met a woman who claimed to be from a charity group and asked the Applicant for donations, which the Applicant did, and eventually they struck up a friendship between them.

4.In July 2012 the Applicant left for Hong Kong to start working as a foreign domestic helper, but later she was informed by her husband that the woman had come looking for her, claiming to be a member of NPA and asked the Applicant to contact her for the purpose of joining her organization.  The Applicant became alarmed about the real identity of this woman, and told her husband to avoid any further contact with her.

5.For the next several years this woman kept coming to the Applicant’s home in the Philippines looking for her, and eventually in 2015 when the woman again failed to find the Applicant in her home, she warned her husband that if the Applicant still failed to join NPA, she and her fellow members would seek her out and kill her.

6.After being told of the threats by her husband, the Applicant became fearful for her life, and so after her last employment was terminated in March 2016, she was afraid to return to the Philippines, and therefore overstayed in Hong Kong and subsequently raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 1 August 2018 and attended screening interview before the Immigration Department with legal representation.             

7.By a Notice of Decision dated 14 September 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”).

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 any past ill-treatment from them, that the Applicant has never received any direct threats from any NPA people and that there is no evidence that the woman was indeed a member of NPA nor any particular reason for NPA to have any interest in the Applicant for all these years or that they would still have any adverse interest in her since she left the country, that in any event as NPA is regarded as a terrorist group by the Philippines government 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 part of the country away from her home district in large cities such as Quezon City or Caloocan City where it would be difficult if not impossible for anyone to locate her.

9.On 28 September 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 14 March 2019 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 15 May 2019 her appeal was dismissed by the Board which also confirmed the Director’s decision.

10.In its decision the Board found inconsistencies, exaggeration and untruthfulness  in the Applicant’s evidence as to her claimed fear of harm from the NPA people that it did not consider her to be a witness of truth and doubted the credibility of her claim as there was simply no evidence or reason for NPA to have any interest in her as she was then just a housewife with no specialty whatsoever for the NPA people to be looking for her for years and everywhere just to get her to join their organization that it did not accept that her claim is credible or that she would face any risk of harm from the NPA people or from anyone upon her return to the Philippines, and that in any event as NPA is regarded as a terrorist organization by the Philippines government that state/police protection would be available to the Applicant if needed as well as reasonable internal relocation for her to move safely to other area of the Philippines away from her home district without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.

11.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 her hearing bundle for her appeal before the Board but without putting forward 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.

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 fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in her 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, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                 

14.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.

15.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and accordingly I refuse her leave application.

Dated the 21^st 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