Sitchon Mercedita Dela Curz v. Torture Claims Appeal Board

HCAL 3097/2019

[2023] HKCFI 2660

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3097 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 46-year-old national of the Philippines who last arrived in Hong Kong on 24 December 2017 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 20 November 2019, but was arrested by police on 28 December 2018 for making a false representation to an immigration officer for which she was subsequently convicted and sentenced to prison for 4 months. After she was discharged from prison and was referred to the Immigration Department for deportation, she raised a non-refoulement claim on the basis that if she returned to the Philippines she would be harmed or killed by her step-father for disclosing his extra-marital affair to her mother.

2.The Applicant was born and raised in Barangay Kingkabayo San Miguel, Bulacan, the Philippines. After leaving school she worked as a housemaid, and continued to reside with her mother and step-father after her mother had divorced her father.

3.In 2012 she started coming to Hong Kong to work as a foreign domestic helper, and would return to her mother’s home in the Philippines during her holidays. On one such occasion in December 2016 she accidentally discovered her step-father having sex with her mother’s sister, during which she was grabbed by her step-father and was warned not to disclose to her mother or else he would kill her.

4.After the incident the Applicant returned to Hong Kong to continue with her employment, but some months later when she was told by her mother of being abused and beaten by her step-father, the Applicant revealed the said incident about her step-father to her mother who then had some angry confrontations with her husband.

5.Subsequently the Applicant was warned by her mother that her step-father was furious about her disclosure and had threatened to kill the Applicant upon her return to the Philippines, and so after her discharge from prison and was about to be deported, the Applicant was afraid of being harmed or killed by her step-father and therefore raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 30 May 2019 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 20 June 2019 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 step-father 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 him to seriously harm or kill her or that he would still have any adverse interest in her after all these years since the incident in 2016, that in any event it was a private family dispute between 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 105 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 step-father to locate her.

8.On 2 July 2019 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 23 September 2019 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 18 October 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 fear of harm from her step-father over her disclosure of his extra-marital affair to her mother but found that it was a private dispute between them within their family without any official involvement that state or police 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 part of the country away from her home district without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.

10.On 21 October 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for her intended challenge:

(1)  That the Adjudicator reached the decision wrongly in assessing the Applicant’s non-refoulement claim in that it was not fair or reasonable as required by the Wednesbury test in failing to recognize that her right to life must be protected by criminal law from extra-judicial killings that she may face if deported to her home country;

(2)  That the Board failed to appreciate or give proper weight or importance to the presence of State Acquiescence in the Applicant’s case that led to an unfair outcome of rejecting her claim;

(3)  That the Board failed to consider the fact that the Applicant was tortured at the behest of the state law enforcement agencies and politicians that the state would be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(4)  That the Board acted unreasonable and was procedurally unfair by placing too much reliance on COI but failed to take account of the Applicant’s personal background and experience in assessing her claim;

(5)  That the Board had listed relevant COI which supported the Applicant’s aversions that the police in her home country would not be able to protect but failed to consider or give sufficient weight to such evidence and instead ruled otherwise against the Applicant’s claim which is a clear case of unfair attitude shown by the Board which in itself is enough to render its decision void;

(6)  That the Board failed to attain high standard of fairness in failing to recognize that corruptions and incompetency of the administration of the Applicant’s country is still a very serious problem as various human rights organizations had compiled reports which stated testament to the Applicant’s assertions that the decision of the Board should be considered unreasonable in the scope of public law;

(7)  That the Adjudicator was procedurally improper or unfair when assessing whether or not to accept explanations provided by the Applicant and unreasonably required her to respond to questions that she was not in a position to offer any response;

(8)  That the Adjudicator failed to take into account the nexus of political parties and official corruption which exist in the Applicant’s home country making the persecution effectively prosecution by the State;

(9)  That the Adjudicator made a ruling to dismiss the Applicant’s appeal based on findings which the Adjudicator ought to allow the appeal and thus the decision is irrational.

11.All these are however just some vague and bare assertions of the Applicant containing a few key words or phrases but without any relevant or necessary 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 Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy is State Acquiescence to the Applicant’s claim, or what evidence that she had been tortured by the police or state enforcement agencies or politicians when the factual basis of even her own case that her claimed risk arose from some private dispute within her family without any official involvement. As such, and as none of these assertions were elaborated or presented with any 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 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 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 13^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