Lagulos Sheila Saavedra v. Torture Claims Appeal Board

HCAL 1869/2019

[2024] HKCFI 3026

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1869 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 be refused.

Observations for the Applicant:

1.The Applicant is a 44-year-old national of the Philippines who last arrived in Hong Kong on 26 January 2009 with permission to remain as a visitor up to 9 February 2009 when he did not depart but instead overstayed until he was arrested by the police on 12 October 2009. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to he would be harmed or killed by. He was subsequently being released on recognizance pending the determination of his claim. 

2.The Applicant was born and raised in Davao Del Norte, the Philippines. After leaving school she worked as a saleslady in her home district, then went to Saudi Arabia to work as a domestic helper.

3.In 2008 she returned to the Philippines and borrowed a loan from a local money-lender to make arrangements to come to Hong Kong to look for employment, hoping to repay the loan once she was able to find a job in Hong Kong.

4.Accordingly she arrived in Hong Kong on 26 January 2009 as a visitor with permission to remain as such for 2 weeks, but when she was unable to find any employment she was afraid to return to the Philippines as she was without any means to repay her loan, and so she overstayed in Hong Kong since February 2009, and upon her subsequent arrest by the police in October 2009, she raised her torture claim to the Immigration Department, and after it was rejected, she then sought non-refoulement protection, for which she completed a Supplementary Claim Form (“SCF”) on 21 May 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.While released on recognizance pending the determination of her claim, the Applicant formed a relationship with a local resident and gave birth to their son in August 2013 who is regarded as a Hong Kong permanent resident with the right of abode, and while he is said to have medical issues whom the Applicant claims to require her care, he is not a subject of any non-refoulement claim.

6.By a Notice of Decision dated 30 July 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including risk of her absolute and non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) 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 her creditor upon her return to the Philippines as low due to the absence of or low intensity and frequency of past ill-treatment from her creditor, that 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 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 area of the country away from her home district in large cities such as Manila where it would be difficult if not impossible for her creditor to locate her.   

8.On 9 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 2 May 2019 with her lawyer from DLS before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board and with submissions made on her behalf by her lawyer. On 20 June 2019 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board found no reliable evidence of any risk of the Applicant being harmed or killed by her creditor, that such risk if real arose from a private monetary dispute between her and her creditor only 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 by her creditor, and if she wishes to bring her son, who is a Hong Kong permanent resident with the right of abode and not a subject of any non-refoulement claim, with her to return to the Philippines, they would both be entitled to help and support from various governmental departments and NGOs if so required without any real or foreseeable risk of any form that her non-refoulement claim fails on all the applicable grounds.   

10.On 4 July 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Director’s decision, but no ground for seeking relief was given in her Form or her supporting affirmation in which she just stated that she rejects the decision as it disregarded her dangerous situation but without providing any necessary or relevant details or particulars or elaboration as to how it did so, nor was she able to do so at the hearing of her application. 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 where the proper occasion for an 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 risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and 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 properly and clearly identified by the applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see 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.The fact is that it has been established by both the Director and the Board in their decisions that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of, 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.As for her claim that her son needed her to take care of him in Hong Kong due to his medical issues, as correctly found by the Board that if she were to leave her son to return to the Philippines that by itself cannot amount to any ill-treatment under BOR 3, and as held by the Court of Final Appeal in Comilang & Anor v Director of Immigration, and Luis & Others v Director of Immigration, FACV Nos. 9 & 10 of 2018 [2019] HKCFA 10, 4 April 2019, that persons with no right to enter or remain in Hong Kong cannot rely on his or children’s rights to do so as a matter of the Hong Kong constitutional law.                 

14.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.

15.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss her application.

Dated the 5^th day of November 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