Case Document

100%

HCAL 1877/2019

[2024] HKCFI 3028

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1877 OF 2019

BETWEEN
	Tugonon Salome Delfino alias Delfino Salome alias Tugonon Salome alias Tugonon Salome D	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;

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 38-year-old national of the Philippines who last arrived in Hong Kong on 25 June 2017 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 25 June 2019 or within 14 days of its early termination, but when her employment was prematurely terminated on 13 August 2017, she did not depart and instead overstayed, and on 18 October 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 family for converting her religion from Catholic to Islam. She was subsequently being released on recognizance pending the determination of her claim.

2.The Applicant was born and raised as a Catholic in Cebu City, the Philippines. After leaving school she worked in a company in her home district, and in December 2012 she started coming to Hong Kong to work as a foreign domestic helper.

3.In 2016 she formed a relationship with a Bangladeshi man in Hong Kong, and subsequently in 2017 she converted her religion to the same of her boyfriend of Islam in a Kowloon Mosque, but when she informed her family of the same, her family who were all Catholics were furious, and her step-father even threatened to kill her when she returned to the Philippines, whereupon the Applicant cut off all further contacts with her family.

4.However, after her last employment was prematurely terminated on 13 August 2017, she was afraid to return to the Philippines and therefore overstayed in Hong Kong, and subsequently married her Bangladeshi boyfriend and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 13 August 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 26 September 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 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”).

6.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 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 reliable evidence of any real intention of her family to seriously harm or kill her over her religious conversion other than angry words and empty threats made over the phone, that in any event it was a private religious dispute within her family only 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 area 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 family to locate her.

7.On 4 October 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 14 May 2019 her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board accepted the Applicant’s claims of having converted her religion from Catholic to Islam and of her fear of being harmed by her family over her such conversion but found no reliable evidence of any real intention of her family to seriously harm or kill her other than angry words and empty threats, that in any event it was a private dispute within her family 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 laws in place to protect freedom of religions and reasonable internal relocation for her to move safely to other areas of the country away from her home district without any risk of being located by her family that her claim for non-refoulement protection failed on all applicable grounds.

9.On 5 July 2019 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 affirmation in which she just repeated her claim as before and asserted that the Board did not give her sufficient time to prepare for her hearing or to listen to her case 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.

10.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.

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

12.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.

13.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

(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 5 November 2024 Tugonon Salome Delfino alias Delfino Salome alias Tugonon Salome alias Tugonon Salome D 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 5 November 2024 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 13730/18/10/72/F891 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 3000/18 (formerly RBCZ 10216/18)(T6I123) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)