Case Document

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HCAL 753/2023

[2024] HKCFI 1591

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 753 OF 2023

BETWEEN
	Pascual Jackie Lou Momek alias Momek Jackie Lou alias Pascual Jackie Lou alias Pascual Jackie Lou M.	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 27 November 2018 with permission to work as a foreign domestic helper until the expiration of her employment contract, but when her last employment was completed on 27 November 2020, she did not depart and subsequently overstayed, and on 28 February 2022 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 former boyfriend’s family who blamed her for circulating some indecent picture of him on the internet.

2.The Applicant was born and raised in Upi Maguindanao, the Philippines. After leaving school she worked as a school teacher, and dated her boyfriend with whom she subsequently cohabited together in her home district.

3.In 2015 she started to work overseas in Qatar as a domestic helper, and then in Hong Kong in 2018 as a foreign domestic helper.

4.In early 2019 the Applicant was told by her sister that her boyfriend was suspected to be having an affair with another woman in her home district, and when she later saw a photo on the social media showing her boyfriend naked with another woman, the Applicant was furious and confronted her boyfriend on the phone over his affair, during which they had a heated quarrel that the Applicant decided to end their relationship.

5.Later in March 2019 the Applicant received a telephone call from her former boyfriend’s mother who accused her of circulating the photo of her boyfriend on the internet and threatened to kill her when she returned to the Philippines, and so after her last employment in Hong Kong was completed, 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 10 June 2022 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 13 July 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 risk of harm from her former boyfriend’s family 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 such relatively minor matter, that in any event even if such risk were real that it arose from a private relationship dispute between 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 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 her former boyfriend’s family to locate her.

8.On 25 July 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 18 April 2023 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 5 May 2023 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board accepted the Applicant’s claim of fear of harm from her former boyfriend’s family over their accusation of her posting the picture of her former boyfriend naked with another woman on the social media but found no reason for them to do so given the fact that she was then out of the country and could not have taken the photo of her former boyfriend or any reliable evidence of any real intention of them to seriously harm or kill her, and that in any event it was a private dispute between her and her former boyfriend’s family 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.

10.On 17 May 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 her supporting affirmation of the same date in which she just stated that she is not satisfied with the decision as her life would still be in danger in her home country 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.

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 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.

13.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.

14.Moreover, the Applicant recently on 26 April 2024 filed an affirmation requesting to withdraw her application as she has been assured by her family that she will not be at any risk returning to her home country.

15.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 that it is safe for her to return to her home country, I accordingly dismiss her leave application.

Dated the 18^th day of June 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 18 June 2024 Pascual Jackie Lou Momek alias Momek Jackie Lou alias Pascual Jackie Lou alias Pascual Jackie Lou M. 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 18 June 2024 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 20690 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 518/22 (formerly RBCZ 5000416/22)(T4S18) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)