Banglayan Betty Malecdan v. Torture Claims Appeal Board

HCAL 289/2019

[2023] HKCFI 2531

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 289 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;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 38-year-old national of the Philippines who arrived in Hong Kong on 17 August 2015 as a visitor with permission to remain as such up to 31 August 2015 when she did not depart and instead overstayed, and was arrested by police on 22 September 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 for leaving him and putting an end to their relationship. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Tetep-an-Sagada Mountain Province, the Philippines. After leaving school she worked in trading at home and dated her boyfriend who ran a garment business in Baguio City.

3.In 2012 she went to Singapore to work as a domestic helper, and upon returning to the Philippines in June 2014, her boyfriend proposed to marry her, and in order to prepare for their wedding, the Applicant moved into her boyfriend’s home in Baguio City.

4.While staying in his home, the Applicant to her shock discovered that her boyfriend was in fact a drug addict and a drug dealer, and decided that she did not want to spend the rest of her life with such a man, and so she told her boyfriend that she wanted to cancel their wedding plan and to end their relationship, whereupon her boyfriend became furious and beat her and threatened her that he would never let her leave.

5.Thereafter the Applicant became fearful for her life, and after another beating by her boyfriend, she one night made her escape from his home and fled to hide in her sister’s place, and later to Palawan, but when she heard that her boyfriend was looking for her everywhere, she felt that it was no longer safe to remain in the Philippines, and so on 17 August 2015 she departed for Hong Kong where she subsequently overstayed, and after 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 2 March 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 29 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 found no substantial grounds for believing that there will be any real and substantial risk of her being harmed or killed by her former boyfriend upon her return to the Philippines due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of him to seriously harm or kill her or that he would still have any adverse interest in her all these years after she left the country, that in any event it was a private relationship dispute between the 2 of them without 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 former boyfriend to locate her.

8.On 11 April 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 19 October 2018 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 18 January 2019 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board found inconsistencies discrepancies and implausibility in the Applicant’s evidence that it did not consider her to be a witness of truth or that she genuinely fears harm from her boyfriend or that she has been threatened or harmed by him or that it caused she to flee her home country to come to Hong Kong for protection that it rejected the fundamental basis of her claim that she faces any form of harm or any real risk of the proscribed forms of harm upon her return to her home country, and concluded that her claim for non-refoulement protection failed on all applicable grounds.

10.On 30 January 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 in which she just repeated her claim of fear of harm from her former boyfriend but without putting forth any proper ground for her intended challenge, nor was she able to do so at the hearing of 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 Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 50 – 64 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.

13.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 the Applicant 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 refuse her leave application.

Dated the 5^th day of October 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