Villalobos Catherine Pamat v. Torture Claims Appeal Board and Another

HCAL 2227/2020

[2023] HKCFI 2681

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2227 OF 2020

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 36-year-old national of the Philippines who arrived in Hong Kong on 3 October 2012 with permission to work as a foreign domestic helper until the expiration of her employment contract on 3 October 2014 or within 14 days of its early termination, but was subsequently arrested by police for theft for which she was convicted in February 2013 and sentenced to prison for 8 months, and upon her discharge 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 creditor or her surety over her unpaid debts. She was subsequently being released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Manila, the Philippines. After leaving school she married her husband and raised a family with a son in her husband’s home district in Batangas Province.

3.In 2011 her marital relationship with her husband deteriorated that she left with her son to return to her parents’ home in Manila, and worked in the factory to earn her living and to support her son.

4.In mid-2012 the Applicant applied to work in Hong Kong as a foreign domestic helper, and in order to pay for her agency fees and expenses, she borrowed a loan from a local bank with her friend GB as surety and to be repaid within 7 months by monthly instalments.

5.Accordingly the Applicant arrived in Hong Kong on 3 October 2012 to start her employment as a foreign domestic helper and to pay the monthly instalments of her loan, but was subsequently arrested by police for theft and was convicted in February 2013 and sentenced to prison for 8 months.

6.As a result she defaulted with her loan repayment and was threatened by both the bank and GB as surety for her loan, and upon her discharge from prison and was referred to the Immigration Department for deportation, she was afraid to return to the Philippines and therefore raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 9 October 2019 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.By a Notice of Decision dated 31 October 2019 the Director of Immigration (“The 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 and non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) 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 bank or GB over her outstanding loan 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 evidence of any real intention of them to seriously harm or kill her other than to press her to repay her loan, that in any event it was a private monetary dispute between them without any official involvement that state 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 102 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 area away from her home district such as Quezon City or Cebu where it would be difficult if not impossible for anyone to locate her.

9.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“The Board”) against the Director’s decision, and for which she attended an oral hearing on 18 June 2020 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 23 October 2020 her appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board accepted the Applicant’s claim of fear of harm from her creditor or her surety due to their dispute over her outstanding loan but found no reliable evidence of any real intention of either of them to seriously harm or kill her, and that in any event it was a private monetary dispute between them 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.

11.On 6 November 2020 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her supporting affirmation of the same date she put forward various grounds for her intended challenge which can be summarized as follows:

(1)  That she was not given legal representation in her appeal before the Board and thereby deprived of the opportunity to make a full representation of her claim;

(2)  That she was unable to read or understand English but that the Board’s decision was written in English without providing any translation thereof to her to enable her to have a better understanding of the decision;

(3)  That the Adjudicator was biased against the Applicant and made her determination based on many assumptions without allowing her any opportunity to explain or elaborate her case;

(4)  That the Adjudicator wrongfully challenged the credibility of her claim without any proper basis to reject her claim on credibility;

(5)  That the Adjudicator had exercised her case management power wrongfully.

12.For the Applicant’s complaint under Ground (1) of not being provided with legal representation in her appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

13.The Applicant already had the benefit of legal representation in presenting her case to the Director, and was able to testify and make representation in her appeal hearing before the Board and to answer questions raised of her claim by the Adjudicator without difficulty. As such I do not find anything amiss arising from the lack of legal representation in her appeal process, nor do I find this ground reasonably arguable for her intended challenge.

14.As for her complaint under Ground (2) of not being provided with a translation of the Board’s decision, it is clear that the Applicant was assisted by an interpreter at her appeal hearing before the Board during which she was able to make representation her case fully and understand the Adjudicator properly, while in her present application she clearly also had legal assistance, and in the absence of any particulars or specifics to demonstrate that the basis of her claim has indeed been wrongly interpreted or wrongly understood by the Board, I find this complaint of the Applicant simply speculative and without basis.

15.As for her complaints under the remaining grounds, they are all just some vague and bare assertions of the Applicant containing a few key words or phrases but without any relevant or necessary details or particulars or elaboration as to how they apply to her case or how did the Board or the Adjudicator err in the decision, or in what way was the Adjudicator biased against her or exercise the case management power wrongfully, while it is factually incorrect to assert that the Adjudicator challenged her on credibility as the Board clearly in its decision accepted her claim of fear of harm from her creditor over her outstanding debts but found no reliable evidence of any real intention of her creditor to harm her as she so claimed. As such and in the absence of any proper or relevant elaboration for these grounds, I do not find any of them reasonably arguable for her intended challenge either.

16.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasion for an 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 risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and 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 properly and clearly identified by the applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see 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.

17.The fact is that it has been established by both the Director and the Board in their 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.

18.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.

19.Moreover, the Applicant recently wrote to request to cancel the hearing of her application and to close her case as it is now safe for her to return to her home country.

20.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 safe for her to return to her home country, I accordingly dismiss her leave application and direct that the scheduled hearing of her application be vacated.

Dated the 17^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