Case Document

100%Judiciary

HCAL 1688/2023

[2023] HKCFI 2956

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNO. 1688 OF 2023

BETWEEN
	Pabiling Ailene Capilar	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 44-year-old national of the Philippines who last arrived in Hong Kong on 19 January 2020 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 2 April 2021 or within 14 days of its early termination, and upon the expiration of her employment on 1 April 2021 she did not depart but was allowed to remain as a visitor until 19 August 2021, but on 16 July 2021 she was arrested for undertaking unauthorized employment for which she was subsequently convicted and sentenced to prison for 2 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 the terrorist group New People’s Army (“NPA”) for quitting the group. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Capilar Poblacion, President Quirino Sultan Kudarat, the Philippines. In 1996 while she was still in secondary school she and her father were recruited by the NPA to go into the mountains to watch over their arms and ammunitions, but after several months they decided to leave NPA and made their escape down the mountain but was separated during their flight, with the Applicant fleeing to Estrella Village where she made her living as a domestic worker and a factory worker.

3.In 1999 the Applicant moved to another city in Zamboanga where she worked in the factory and subsequently met and married her husband and raised a family with 3 children.

4.In 2014 the Applicant went to Kuwait to work as a domestic helper until 2018 when she returned to her home in the Philippines, but in 2019 she was told by her relatives that her father had been killed in South Cotabato, she suspected that he was murdered by the NPA for leaving the group, and as she feared that the NPA would also be looking to kill her, the Applicant decided to leave the country by applying to work in Hong Kong as a foreign domestic helper, which she subsequently did on 19 January 2019 when she departed the Philippines for Hong Kong to start her employment contract, during which she returned to the Philippines in January 2020 for holiday without any incidents.

5.On 19 January 2020 she returned to Hong Kong to continue with her employment, but after she was subsequently arrested for undertaking unauthorized employment, she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 28 December 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 28 April 2022 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 those NPA people upon her return to the Philippines as low due to the absence of any past ill-treatment from them, that it is not accepted that after all these years since her escape from the NPA in 1997 that they would still have any adverse interest in her or that they had killed her father more than 20 years later in 2019, 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 110 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 any NPA people to locate her.

8.On 11 May 2022 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 3 May 2023 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 21 June 2023 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence of being recruited to join the NPA with her father in 1996 and their subsequent escape in 1997 or of any evidence that her father had subsequently been murdered by the NPA more than 20 years later in 2019 other than her own groundless speculation that it doubted her claim of fear of harm from the NPA that caused her to leave her country to come to Hong Kong to seek protection, and that in any event as the NPA is regarded as a terrorist group by the Philippines government 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 or any part of the country where the NPA are active and without any risk of being located by them that her claim for non-refoulement protection failed on all applicable grounds.

10.On 20 September 2023 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, 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: ReLakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst vDirector of Immigration [2018] HKCA 524.

12.In the Applicant’s case, the Board rejected her claim for the thorough and detailed analysis and reasoning set out in paragraphs 13 – 33 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 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 her with non-refoulement protection in Hong Kong: see TK vJenkins & 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 to grant leave and dismiss her leave application.

Dated the 16^th day of November 2023

(Chung Lai Fan, Christine)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 16 November 2023 Pabiling Ailene Capilar Applicant’s ref. no.: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 16 November 2023 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 20275 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2895/21 (Formerly RBCZ 5000192/21) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)