San Juan Elena Toledo v. Torture Claims Appeal Board

HCAL 1466/2023

[2023] HKCFI 3102

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1466 OF 2023

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 45-year-old national of the Philippines who last arrived in Hong Kong on 29 September 2020 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 6 October 2022 or within 14 days of its early termination, but on 3 November 2022 she was arrested for making a false representation to an immigration officer for which she was subsequently convicted and sentenced to prison for 6 months, during which she raised a non-refoulement claim on the basis that if she returned to the Philippines she would be harmed or killed by her husband and/or by the terrorist group New People’s Army (“NPA”) due to their domestic dispute.

2.The Applicant was born and raised in Fabrica, San Vicente, Camarines Norte, the Philippines. After leaving school she worked in the factory, and married her husband and raised a family with a son in her home district.

3.In 2002 her marital relationship with her husband started to deteriorate after the birth of their son and when her husband became an alcoholic, and when drunk he would often abuse and hit her by slapping and punching.

4.As her husband was having difficulty keeping his job after becoming an alcoholic, and in order to support the family the Applicant in 2005 went to work in Saudi Arabia and Jordan as a domestic servant, and then in 2010 she started to come to Hong Kong to work as a foreign domestic helper.

5.Due to their poor marital relationship the Applicant in 2017 started to have an affair with another man in Hong Kong, but in November 2022 she was arrested for making false representation to an immigration officer for which she was subsequently convicted and sentenced to prison for 6 months, during which she had a telephone conversation with her son in January 2023 who warned her that her husband had found out about her affair in Hong Kong and had threatened to kill her or ask the NPA to do so, and while he had no connection with the NPA, her son feared that he might make up some false charges against her to cause them to want to kill her.

6.As a result the Applicant was afraid to be deported back to the Philippines, and so she raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 8 March 2023 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 March 2023 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”).

8.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and did not accept that her claimed risk of harm from her husband or the NPA is likely to materialize due to the absence of any reliable evidence of any real intention of either of them to seriously harm or kill her, that there is no evidence of any connection between her husband and the NPA to suggest any adverse interest of NPA in the Applicant or that they would come after her due to the domestic dispute between the 2 of them, that in any event it was a private domestic dispute between the Applicant and her husband 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 114 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 anyone to locate her.

9.On 13 April 2023 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 18 May 2023 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 26 June 2023 her appeal was dismissed by the Board which also confirmed the Director’s decision.

10.In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted her claim of fear of harm from her husband whom she has had no contact for years or from the NPA who had no reason at all to have any adverse interest in her that caused her to seek protection in Hong Kong, and that in any event it was a private domestic dispute between her and her husband without any official involvement that state or police protection would be available to the Applicant upon her return to the Philippines that it was not satisfied that she has established that there are substantial grounds to suggest that she will face any real risk of harm or ill-treatment as claimed upon her return to the Philippines that her claim for non-refoulement protection failed on all applicable grounds.

11.On 21 August 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 to which she just attached a copy of the decision 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.

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 Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 31 – 39 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.

14.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 v Jenkins & Anor [2013] 1 HKC 526.

15.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.

16.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 application.

Dated the 5^th day of December 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