Plomen Karen Pacio v. Torture Claims Appeal Board

HCAL 568/2023

[2023] HKCFI 3243

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 568 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 / 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 35-year-old national of the Philippines who last arrived in Hong Kong on 10 February 2019 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 22 May 2020 or within 14 days of its early termination, but when it was prematurely terminated on 7 October 2019, and that her visiting visa also expired on 14 November 2019, she did not depart and instead overstayed, and more than 15 months later on 25 February 2021 she surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if she returned to the Philippines she would be harmed or killed by 2 unknown men for having witnessed them committing a murder in her home district in the Philippines.  She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Baguio City, the Philippines.  After leaving school she worked as a nursing aid in her home district, and in 2012 she started coming to Hong Kong to work as a foreign domestic helper, returning to the Philippines only for holidays.

3.In September 2018 the Applicant returned to her home district in the Philippines for her holiday, and on 10 September 2018 when she was with her cousin on her way to the airport for her flight back to Hong Kong, and while they were waiting at the bus stop for their transportation to the airport, they saw 2 men wearing hoodies stabbing another man on the ground with knives, and when those 2 men saw them, they tried to give chase but the Applicant and her cousin managed to flee from the scene and ran away.

4.However the Applicant realized that she had left her luggage at the bus stop, but when she later returned to the bus stop, she was unable to find her luggage which she suspected was taken by those 2 men, and then it dawned on her that they could identify her from her photo album in the luggage, she became fearful for her life and immediately left the Philippines to return to Hong Kong to resume her employment.      

5.Several weeks later she was told by her cousin that the victim had died in the hospital and that those 2 men had come looking for the Applicant, and that her cousin therefore warned her not to return to the Philippines for fear that those murderers would be able to find and kill her for having witnessed the murder, and so after her last employment was terminated in October 2019, the Applicant was afraid to return to the Philippines and therefore overstayed in Hong Kong and subsequently raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 18 October 2021 and attended screening interview before the Immigration Department with legal representation.             

6.By a Notice of Decision dated 12 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 her being harmed or killed by those men 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 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 109 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 where it would be difficult if not impossible for anyone to locate her.

8.On 25 April 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 16 November 2022 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 29 March 2023 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board found significant and material inconsistencies discrepancies and contradictions in the Applicant’s evidence in particularly as to what she alleged to have witnessed the murder by those men which were in drastic difference and conflicts with what she had earlier disclosed to the Director that it seriously doubted her claim of having witnessed some murder and feared of being killed by those killers that caused her to overstay in Hong Kong for protection, and that her credibility was further seriously undermined by her failure to raise her non-refoulement claim for protection in October 2019 when she first overstayed in Hong Kong until more than 15 months later in February 2021 that it rejected her such claim as incredible and entirely a fabrication and concluded that her non-refoulement claim for protection failed on all the applicable grounds.    

10.On 11 April 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 in which she just stated that she rejects the decision as it disregarded her dangerous situation but without providing any details or particulars or elaboration as to how it did so.  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: 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.

12.In the Applicant’s case, the Board rejected her claim essentially on its adverse finding as to her credibility for the through and detailed analysis and reasoning set out in paragraphs 24 – 31 of its decision and with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim during her appeal hearing, and in the absence of any error of law or judicial 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 findings of the Board.  

13.Furthermore, 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.                

14.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.Moreover, the Applicant recently on 9 November 2023 filed an affidavit requesting to “cancel” her application for judicial review but without providing any reasons or explanation therefor.

16.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 to “cancel” her application, I accordingly dismiss her leave application.

Dated the 14^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