Pacleb Arlyne Cabalitasan v. Torture Claims Appeal Board

HCAL 1584/2019

[2023] HKCFI 2952

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1584 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 46-year-old national of the Philippines who last arrived in Hong Kong on 3 June 2014 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 3 June 2016 or within 14 days of its early termination, but when her employment was prematurely terminated on 2 August 2014 she did not depart and instead overstayed, and was arrested by police on 2 September 2014.  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 the family of her deceased husband for failing to attend his funeral to pay her respect. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Mangayang Dupax Del Sur, Nuera Vizcaya, the Philippines.  After leaving school she worked as a domestic helper in her home district, and upon marrying her husband, she then moved to his home in Quezon City to raise their family with their children.

3.In 2004 she went to work in Lebanon, and in 2007 she started to come to Hong Kong to work as a foreign domestic helper, returning to her husband’s home only during her holidays.

4.In 2013 while the Applicant was working in Hong Kong, her husband and their children moved to live in Zamboanga del Norte where they subsequently died in a typhoon in December 2013, but when she was unable to get any time off her employment in Hong Kong to travel to the Philippines to attend her husband’s funeral, his family became furious with her for failing to show her respect to her husband, and threatened to kill her upon her return to the Philippines. 

5.The Applicant therefore became fearful of the threats from her deceased husband’s family, and so after her last employment was prematurely terminated on 2 August 2014, she was afraid to return to the Philippines and therefore overstayed in Hong Kong, and after her subsequent arrest by the police, she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 7 January 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

6.By a Notice of Decision dated 26 January 2015 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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 deceased husband’s family 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, that in any event it was a private personal dispute between them within their family 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 107 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 deceased husband’s family to locate her.

8.On 5 February 2015 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 10 September 2015 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 30 March 2016 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 deceased husband’s family over their personal dispute but found no reliable evidence of any real intention of them to seriously harm or kill her, and 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 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 then applicable grounds.

10.Meanwhile on 12 January 2017 the Director on his own initiative invited the Applicant to submit any additional facts which she may consider relevant to her non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute and non-derogable rights under the HKBOR including right to life under Article 2 (“BOR 2 Risk”), and in the absence of any response from her, the Director by a Notice of Further Decision dated 1 February 2017 also rejected the Applicant’s BOR 2 Claim upon finding that she had failed to establish a personal and real risk of her absolute and non-derogable rights under the HKBOR including right to life under BOR 2 being violated upon her return to the Philippines.

11.On 23 March 2017 the Applicant again lodged an appeal to the Board against this Further Decision of the Director in which she just repeated her claim as before without any additional facts in support of her BOR 2 Claim, but as her Notice of Appeal was deemed to have been filed outside the 14-day period required by Section 37ZS (1) of the Immigration Ordinance, and in pursuance of Section 37ZT (2) of the Ordinance the Board proceeded to decide, as a preliminary decision without a hearing, whether to allow the late filing of the Notice of Appeal.

12.By a Decision dated 4 June 2019 the Board found the Applicant’s Notice of Appeal to have been late by some 5 weeks, that her explanation of not having received the Director’s Further Decision was not acceptable, and that even if true that she had only herself to blame for failing to update her change of address to the authorities.       

13.On 11 June 2019 the Applicant filed her Form 86 for leave to apply for judicial review of this second decision of the Board, 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 that her life is in danger in her home country 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 appeal to 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.

14.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.

15.In the Applicant’s case, the Board refused to allow the late filing of her Notice of Appeal on the basis that she had failed to show any justification for her serious delay, and given the findings in its earlier decision under the USM applicable grounds including torture risk, BOR 3 risk and persecution risk that any risk arising from her claim would be negated by state/police protection and internal relocation available to the Applicant upon her return to the Philippines, and the fact that even on the factual basis of her own case that the Applicant’s claim simply does not engage the BOR 2 ground due to its limited scope, I do not find any reasonably arguable basis to challenge the Board’s refusal to allow the late filing of her Notice of Appeal regarding her BOR 2 claim.  

16.Furthermore, as noted above that it has been established by both the Director and the Board in their earlier decisions under USM grounds 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.                 

17.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 claims under the USM applicable grounds or the Board’s determination of the Applicant’s late filing of her Notice of Appeal under the BOR 2 ground.

18.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 16^th day of November 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