Dolorfo Ralen Failago v. Torture Claims Appeal Board

HCAL 1221/2022

[2023] HKCFI 3245

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNO 1221 OF 2022

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 34-year-old national of the Philippines who last arrived in Hong Kong on 24 February 2018 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 20 September 2020 or within 14 days of its early termination, but when her employment was prematurely terminated on 21 July 2020 when she was arrested by police for theft, for which she was subsequently convicted and sentenced to prison for 4 months, and after she was discharged 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 refusing to join their group.  She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Miagao, Iloilo City, the Philippines.  After leaving school she assisted in her family’s business selling fish in her home district, cohabitated with her boyfriend and raised a family with 2 children.

3.Starting at the age of only 15 years old, the Applicant had been invited by some distant relatives of her family to join the NPA in their insurgency military activities against the government, but she had always refused their invitations.

4.One day in 2013 the Applicant was approached by 2 members of the NPA to join their group, but she put up the excuse of having just given birth to her second child that she would not be able to leave her child to join them right away, so they agreed to leave but warned her that they would come back for her in future.   

5.Several months later those 2 NPA men returned to again ask her to join their group, but the Applicant managed to plead for more time for her new born child that they agreed to come back later.

6.To avoid any further contact with the NPA, the Applicant decided to leave the country by applying to work in Hong Kong as a foreign domestic helper, which she eventually did on 10 January 2014 when she arrived in Hong Kong to start her first employment contract, during which she was informed by her family in the Philippines that the NPA people kept coming to look for her and also other younger members of the family to join the NPA with threats and pressure, and so when her last employment was terminated in July 2020, the Applicant 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 30 July 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

7.By a Notice of Decision dated 30 September 2021 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 assessed the level of her being harmed or killed by the NPA people 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 or any reason for them to specifically target her or that they would still have any adverse interest in her after all these years since she left the country in 2014, that in any event the NPA is regarded as a terrorist group by the Philippines government 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 those NPA people to locate her.

9.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 26 January 2022 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 13 September 2022 her non-refoulement clam and appeal were rejected and 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 claim that it doubted her claim of fear of harm from those NPA people that caused her to overstay in Hong Kong to seek protection, that there is no evidence or reason for the NPA to specifically target her for recruitment or that they would still have any adverse interest in her after all these years since she left the country in 2014, and that in any event that 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 without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.    

11.On 8 November 2022 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 affidavit 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.  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: 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.

13.In the Applicant’s case, the fact is that it has also been established by both the Director and the Board in their respective decision that the risk of harm in her 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 vJenkins & 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 in October and November 2023 wrote to request to withdraw her application as it is now safe for her to return to her home country.  

16.In the premises, as I am for the stated 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 now safe for her to return to her home country, 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

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Form CALL-1