Baniaga Analyn Colal v. Torture Claims Appeal Board
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HCAL 2162/2019 [2024] HKCFI 3383 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 2162 OF 2019
Application for Leave to Apply for Judicial Review Following:
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 42-year-old national of the Philippines who arrived in Hong Kong on 27 August 2017 as a visitor with permission to remain as such up to 23 September 2017 as extended when she did not depart and instead overstayed, and on 25 September 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 former boyfriend and/or some drug gang for having witnessed their drug dealing activity. She was subsequently released on recognizance pending the determination of her claim. 2.The Applicant was born and raised in Mankayan, Benguet, the Philippines. After leaving school she cohabited with her boyfriend in La Trinidad, Benguet, and ran a small garment selling business together with her boyfriend to make their living. 3.During their cohabitation her boyfriend was often abusive towards her by pushing and hitting her whenever he lost his temper, and after another severe beating in June 2017 when she was admitted to hospital for 3 days for medical treatment, and after discharge from hospital the Applicant decided to end their relationship by staying in her sister’s place. 4.About one month later she returned to her boyfriend’s place to retrieve her belongings, but upon entering the house she saw her boyfriend there dealing in illegal drugs with some local gangsters that she was immediately pulled by her boyfriend into their bedroom and was locked inside until an hour later when she was released after everyone else had left the place, whereupon her boyfriend pointed a gun at her and warned her never to tell anyone of their illegal activities or else he or those gangsters would kill her before eventually allowing her to leave the house. 5.Upon returning to her sister’s place, the Applicant subsequently received threatening phone calls from unknown men whom she suspected were those gangsters she saw in her boyfriend’s home, and fearing for her life she therefore fled to Panggasinan to take shelter in a friend’s place before moving on to another friend’s place in Manila, but later when she was told by her sister that her boyfriend and some unknown men had come looking for her, the Applicant felt it was no longer safe to remain in the country, and therefore on 27 August 2017 departed the Philippines for Hong Kong and subsequently raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 18 September 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). 6.By a Notice of Decision dated 2 November 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”). 7.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real and substantial risk of her being harmed or killed by her former boyfriend or those drug gangs upon her return to the Philippines due to the 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 other than to deter her from revealing or disclosing their illegal activities to the police, that in any event 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 areas of the country away from her home district in large cities such as Manila where it would be difficult if not impossible for anyone to locate her. 8.On 12 November 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 15 April 2019 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 19 July 2019 her appeal was dismissed by the Board which also confirmed the Director’s decision. 9.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 former boyfriend or drug traffickers for having witnessed their illegal activity that caused her to leave the country to come to Hong Kong to seek protection, that even if her such claim were real that there was no reliable evidence of any real intention of any of them to seriously harm or kill her, and that in any event in the absence of 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 areas of the country away from her home district without any risk of being located by anyone that her claim for non-refoulement protection failed on all applicable grounds. 10.On 29 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 her supporting affirmation of the same date in which she just repeated her claim as before but without putting forth any proper ground for her intended challenge, 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 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 Board rejected his claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 24 – 34 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, and in the absence of any error of law 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 to challenge the finding of the Board. 13.Furthermore, the fact is that it has also been correctly established by both the Director and the Board in their respective decisions that the risk of harm in the Applicant’s 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. 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 all 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 3rd day of December 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
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