Angni Naima Dimnatang v. Torture Claims Appeal Board

HCAL 1473/2019

[2023] HKCFI 2455

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1473 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 42-year-old national of the Philippines who arrived in Hong Kong on 15 January 2016 as a visitor with permission to remain as such up to 29 January 2016 when she did not depart and instead overstayed, and on 1 February 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 the chairman of the local council in Datu Esmael over the election dispute between him and her father. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Baloi, Lanao del Norte, Mindanao, the Philippines to a big Muslim family where her father had several wives and many children. After leaving school the Applicant operated her own mobile phone business in Manila, got married and raised a family with 5 children of her own.

3.Her father was a businessman and the president of the Muslim Group Co-operation in Datu Esmael, and in 2014 he intended to run in the election for the chairman of the local Council against the sitting chairman Bong, but was subsequently shot and killed by men suspected to have been sent by Bong to eliminate his opponent.

4.After the killing the Applicant together with her father’s surviving widows and siblings reported the matter to the police accusing Bong as the person responsible for the killing, for which Bong later offered money to her family as compensation to settle the dispute, but when his offer was rejected by her family, Bong then sent his men to threaten to kill all of the Applicant’s family.

5.The Applicant’s family then went into hiding or moved to other places, while the Applicant on 15 January 2016 departed the Philippines for Hong Kong where she subsequently overstayed and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 24 November 2018 and attended screening interview before the Immigration Department with legal representation.

6.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”).

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 Bong or his men upon her 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 reliable evidence of any real intention of Bong or his men to seriously harm or kill the Applicant, that in any event 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 part of the country away from her home district in large cities such as Manila where she had stayed before without incidents and where it would be difficult if not impossible for Bong or his men to locate her.

8.On 27 April 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 11 January 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.

9.In its decision the Board accepted the Applicant’s claim of election dispute between her father and Bong that led to her father’s death and threats from Bong against her family but found no evidence of any real intention of Bong to seriously harm or kill the Applicant, and that in any event in the absence of any official involvement that state protection would be available to the Applicant upon her return to the Philippines as well as reasonable internal relocation for her to move safely to other areas of the Philippines away from her home district without any risk of being located that her claim for non-refoulement protection in Hong Kong failed on all applicable grounds.

10.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 affirmation 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.

11.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.

12.In the Applicant’s case, the fact is that it has been correctly established by both the Director and the Board in their respective decisions 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, 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 28^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