Case Document

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HCAL 1919/2019

[2024] HKCFI 875

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1919 OF 2019

BETWEEN
	Sibbaluca Shirley Sambo	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:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 39-year-old national of the Philippines who arrived in Hong Kong on 16 March 2017 as a visitor with permission to remain as such up to 30 March 2017 when she did not depart and instead overstayed, and on 6 April 2017 she surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if she returned to the Philippines she would be harmed or killed by her abusive husband due to their marital disputes. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Penablanca, Cagayan, the Philippines. After leaving school she married her husband and raised a family with a daughter in her home district.

3.During the marriage her husband would be violent and abusive towards her by slapping her around and beating her at will.

4.To help support their family the Applicant in 2004 went to Kuwait and later to Singapore to work as a domestic helper, returning home only for holidays during which the abuses from her husband continued, of which she tried to seek help from her husband’s family but to no avail.

5.To avoid such further abuses the Applicant in 2014 came to Hong Kong to work as a foreign domestic helper, and upon completing her employment in 2016 she returned to the Philippines, and to avoid her husband’s abuses, she did not return to their home and instead stayed in her parents’ place.

6.However, one day her husband came to demand money from her, and when the Applicant refused, he became furious and damaged things in the household and threatened to kill her next time if she still failed to pay him money.

7.As she became fearful for her life, the Applicant fled to Makati City where she worked as a restaurant waitress, but one day in January 2017 her husband came into the restaurant and tried to grab her but she managed to flee from him.

8.As she feared that she would be located by her husband anywhere in the country, the Applicant on 26 January 2017 departed the Philippines for Macau to seek asylum, but when it was unsuccessful she then came to Hong Kong on 3 March 2017 and subsequently raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 24 October 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

9.By a Notice of Decision dated 10 December 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 risk of harm from her husband upon her return to the Philippines as low due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of her husband to seriously harm or kill her, that in any event it was a private domestic dispute between the 2 of them 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 Pasig City or Cebu where it would be difficult if not impossible for her husband to locate her.

11.On 24 December 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 8 April 2019 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 28 June 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 evidence that it doubted the credibility of her claim of fear of harm from her husband that caused her to leave her country to come to Hong Kong to seek protection, that there was no reliable evidence of any risk of harm from her husband that it rejected the credibility of her claim, and that in any event even if her claimed risk were real that it arose from her marital disputes with her husband 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 alternatives for her to move safely to other parts 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 9 July 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for relief was given in her Form or her supporting affirmation of the same date in which she just asserted that the Board did not understand her case seriously but without providing any necessary or relevant details or particulars or elaboration as to how it was 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.

14.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.

15.In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in her claim even 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.

16.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.

17.Moreover, the Applicant recently on 5 February 2024 filed an affirmation requesting to withdraw her application as her problem in the Philippines has now been resolved that she wants to return to her home country.

18.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 of no more problem for her to return to her home country, I accordingly dismiss her leave application.

Dated the 26^th day of March 2024

(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 26 March 2024 Sibbaluca Shirley Sambo 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 26 March 2024 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 14991/18/12/348/F972 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 4457/18 (formerly RBCZ 11626/17) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)