Abelido Rowena Rumbaoa v. Torture Claims Appeal Board

HCAL 321/2019

[2024] HKCFI 87

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 321 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;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 43-year-old national of the Philippines who first arrived in Hong Kong in September 2013 with permission to work as a foreign domestic helper until the expiration of her employment contract or within 14 days of its early termination, but when her last employment was prematurely terminated 5 June 2015, she did not depart and instead overstayed, and was arrested by police more than 2 years later on 27 September 2017. 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 her husband’s creditor over his unpaid debts. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Cabayabasan Lal-lo Cagayan, the Philippines. After leaving school she married her husband and raised a family with 2 children in his home in Tuao, Cagayan.

3.In 2003 the Applicant went to Taiwan to work as a domestic helper, during which her husband in the Philippines borrowed a loan from a local wealthy businessman to run his own food business but which was eventually lost and was closed down in 2004, and when her husband was unable to repay his loan, his creditor started to send men to threaten him, and during one such occasion when the Applicant returned home from Taiwan for holiday, those men also threatened her and demanded her to repay her husband’s debts.

4.As a result the Applicant had a fight with her husband which eventually led to their separation later in the same year when the Applicant moved back to stay with her parents in Lal-lo Cagayan.

5.In March 2007 the followers of her husband’s creditor came to her parents’ home to demand the Applicant to repay her husband’s debts, and when she was unable to do so, they threatened that next time if she still failed to settle her husband’s debts she would be killed.

6.After the threats the Applicant left her parents’ home for Manila where she subsequently formed a relationship with another man, and with whom she later gave birth to their daughter.

7.Later when her boyfriend found out about her problem with her husband and his creditor, they had a heated quarrel which eventually led to their separation when the Applicant decided to come to Hong Kong to work as a foreign domestic helper, which she subsequently did in 2013.

8.However, when her last employment was terminated in June 2015, and shortly thereafter she was told by her elder daughter that her husband had been killed by his creditor who then sent his men to look for her everywhere, the Applicant became afraid of returning to the Philippines and therefore overstayed in Hong Kong, and upon 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 16 July 2018 and attended screening interview before the Immigration Department with legal representation.

9.By a Notice of Decision dated 6 August 2018 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”).

10.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 her husband’s creditor and followers 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 over her husband’s debts, that in any event it was a private monetary dispute between her husband and his creditor 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 104 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 Quezon City where it would be difficult if not impossible for her husband’s creditor to locate her.

11.On 17 August 2018 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 9 January 2019 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 25 January 2019 her appeal was dismissed by the Board which also confirmed the Director’s decision.

12.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 her husband’s creditor and followers that caused her to overstay in Hong Kong to seek protection, and that in any event it was a private monetary dispute between her husband and his creditor 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 applicable grounds.

13.On 4 February 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for her intended challenge:

(1)  That the Board was in breach of procedural fairness in that it had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirement;

(2)  That the Board was in breach of procedural fairness in that it acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(3)  That the Board was in breach of procedural fairness in that its decisions to refuse the Applicant’s appeal were unreasonable or irrational in the public law sense or the result of procedural error or unfairness;

(4)  That the Board was in breach of procedural fairness in failing to meet the greater care and duty owed to a self-represented claimant;

(5)  That the Applicant was not given an opportunity to put forward her submissions in the oral hearing nor was she invited to do so which was procedurally unfair to her; and

(6)  That the Board had significantly relied on source of news not officially recognized or were simply hearsays or outdated with the lack of credible source of information resulted in it making groundless speculations that it is safe for the Applicant to return to her home country.

14.These are however all just some vague and bare assertions of the Applicant containing a few key words or phrases but without any relevant or necessary particulars or specifics or elaboration as to how they apply to her case or how the Board or the Adjudicator had erred in the decision, or how did the Board unlawfully fetter its discretion or act in a procedurally unfair manner, or in what way was the decision unreasonable or irrational or what source of news relied on by the Board were not officially recognized or were hearsays or outdated, or how was the Applicant not given any opportunity to put forward her submissions when she did attend an oral hearing before the Board and assisted by an interpreter during which she was able to make her representations to the Board without any problem. As such, I do not find any of them reasonably arguable for her intended challenge, 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, nor do I find any merits in her intended application.

15.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.

16.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 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 claim.

18.For the reasons given 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 5th day of January 2024

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