Urgel Narcisa Anadia v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 664/2018 on BabelCite. This High Court CFI judgment.
1. The Applicant is a national of the Philippines. She is now aged 50 (DOB: 10 January 1969).
Cites 5 cases
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HCAL664/2018 [2019] HKCFI 204 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 664 of 2018 BETWEEN
Application for Leave to Apply for Judicial Review Following:
Order by Deputy High Court Judge Josiah Lam:
It is further directed that:
Observations for the Applicant Background 1.The Applicant is a national of the Philippines. She is now aged 50 (DOB: 10 January 1969). 2.The Applicant claimed she would be harmed or killed by the gangsters of a drug syndicate in her country and also by her ex-cohabitee Ronnie. 3.The Applicant claimed she met Ronnie in 1997. She later gave birth to a son for Ronnie. 4.In 1998, the Applicant worked for a drug syndicate as pusher to earn money for a living. It was a powerful group protected by officials. The Applicant said the gang even had the blessing of the President of the country. It had extensive network and connection. The Applicant said she had seen officials from the National Bureau of Investigation being involved in the drugs activities. She was told that she would enjoy protection if she was caught by the police. 5.In 1999, the Applicant told her boss that she wanted to leave the gang. Her boss warned her she would be killed if she tried to leave. The Applicant then planned to leave the country. 6.The Applicant alleged that in late 1999 she also worked as a police informant while working for the drug syndicate. The Applicant last encountered her gang mates in December 1999. 7.In January 2000, the Applicant left the Philippines for Hong Kong to work as domestic helper. She soon learnt the information she had given to the police as informant led to the arrest of some gang members. Her friend in the gang Maria said the boss was looking for her. The Applicant also learnt from her family members in the Philippines that there were strangers appearing around their house. There were also strangers enquiring her whereabouts. The Applicant suspected those people were members of the gang. 8.In 2006, the Applicant lost contact with Maria. However, she learnt from her father that some people were still looking for her. The father did not know who those people were. 9.The Applicant did not see her cohabitee Ronnie again since she had left the Philippines in 2000. She had never gone back there since then. However, in May 2010 she learnt from Ronnie that he had another woman and the woman had a baby. Ronnie threatened to kill the Applicant if she would cause him troubles. 10.Ronnie continued to threaten the Applicant that he would kill her. The Applicant learnt from her mother that Ronnie stopped his threat in December 2010. 11.In August/September 2011, the Applicant was told the head of her gang ‘Big Brother’ had been released from the prison. There were some mysterious people spying around her house in the Philippines and checking on her whereabouts. The Applicant learnt those people told her neighbours that she had betrayed their gang leader. 12.The Applicant said there was corruption in the Philippines. She did not think her life would be protected by the authorities. She also said she lacked the means to relocate herself to other parts of the country. The gang members could find her. 13.The Applicant was arrested in Hong Kong on 23 May 2010 after she had overstayed here for ten years from 13 May 2000. She raised a torture claim[1] on 9 June 2010. The Director of Immigration (“the Director”) rejected her torture claim on 20 January 2012. There was no information the Applicant had appealed against that decision. 14.The Applicant lodged a non-refoulement claim in October 2013. The Director and the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”) respectively refused the Applicant’s claim with respect to the remaining three applicable grounds: (i) risk of persecution,[2] (ii) risk of torture or cruel, inhuman or degrading treatment or punishment (BOR3 risk)[3] and (iii) risk of violation of the right to life (BOR2 risk)[4]. 15.On 18 April 2018, the Applicant applied for leave for judicial review. Timeline 16.Things happened in this order: –
Respondent/Interested party 17.The Unified Screening Mechanism is a two-tier process. The Director screens an applicant’s non-refoulement claim first; the applicant may appeal to the Board which deals with his/her complaint on a rehearing basis. 18.In Re Moshsin Ali, the Court of Appeal ruled “the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”[5] 19.In Form 86, the Applicant named the Board as respondent and the Director as interested party. The Board is the putative respondent; the Director is the putative interested party. The Director's decision 20.On 20 January 2012, the Director rejected the Applicant's torture claim. There was no evidence the Applicant had appealed against that decision. 21.The Applicant raised a non-refoulement claim in October 2013. 22.In his decision dated 16 August 2016, the Director did not accept the Applicant faced any persecution risk or BOR3 risk. He also considered reasonable state protection and internal relocation were available to the Applicant in any event. 23.In his further decision dated 12 May 2017, the Director did not accept the Applicant faced any BOR2 risk. The Board's decision 24.The Applicant appealed to the Board. The hearing was scheduled for 11 May 2017. The Applicant was absent without excuse.[6] 25.The Adjudicator considered the Applicant had not responded to the Director’s request dated 26 April 2017 for additional facts. The Adjudicator did not find it necessary to hold further hearing in relation to BOR2 risk.[7] 26.The Adjudicator accepted there was a relationship between the Applicant and Ronnie but Ronnie had stopped threatening the Applicant since late 2010. 27.The Adjudicator also accepted the Applicant had worked as a drug pusher. However, there was no evidence that the Applicant had ever been ill-treated by the gang members, not to mention ill-treatment reaching a minimum level of severity. There were no state actors in the complained situation. It was not on account of Convention reasons (race, religion, nationality, membership of a particular social group or political opinion). The Applicant had never complained to the Philippines police or authorities. There was no evidence of any state involvement or acquiescence. The Adjudicator did not accept the Philippines authorities could not afford reasonable state protection to the Applicant. She also found internal relocation was viable in the Applicant's case. 28.The Adjudicator found the Applicant faced no persecution risk, BOR2 risk or BOR3 risk. On 14 July 2017, she refused the Applicant’s appeal with respect to those three applicable grounds. Grounds of judicial review 29.The Applicant complained the Adjudicator unlawfully fettered her discretion; acted in a procedurally unfair manner; rendered unreasonable or irrational decisions; failed to meet the greater care and duty owed to a self-represented claimant. 30.The Applicant complained the appeal bundle was served on her only seven days before the appeal hearing. She could not prepare the appeal in time as she was unrepresented and had difficulty to find someone to translate the English documents for her understanding. She was confused of what happened. 31.The Applicant also complained the Adjudicator relied on outdated cases and information not officially recognised or simply hearsay. Court hearing 32.The hearing took place on 24 July 2018. The Applicant was in person. A Tagalog interpreter provided service in court. 33.The Applicant said someone helped her to prepare Form 86 and the affirmation. All the grounds of judicial review were in the affirmation. She had nothing to add to those grounds. 34.The Applicant was late in her application for leave for judicial review. She gave no reason in her affirmation or Form 86. In court, she explained she did not receive the Board's decision sent to her address. She said the mails in her building were always in a mess. She only got notice of the Board's decision in April 2018 when she reported to the Immigration Department, though she had to report there every two weeks. Being aware of the Board's decision, she asked around for assistance and filed the current application for leave for judicial review on 18 April 2018. Discussion 35.Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities. 36.A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[8] Nevertheless, it is said in Re Islam Rafiqul: –
Late application for leave for judicial review 37.Order 53 Rule 3(1) of the Rules of the High Court reads: –
38.Order 53 Rules 4(1) and (2) of the Rules of the High Court read: –
39.It is clear from these provisions that no application can be made after the three-month period unless the Court considers that there is a good reason for extending time. The Applicant must provide good reasons for the Court to give an extension of time. It is a pre-requisite in late application for leave for judicial review.[10] If the court is not satisfied that there is a good reason for extending time, then no application for judicial review can be made in accordance with Rule 4(1). In that event, the Court should not proceed to consider if leave should be granted or refused on other grounds.[11] 40.In the present case, the Board’s decision was issued on 14 July 2017. The Applicant only applied for leave for judicial review nine months later on 18 April 2018. Excluding the 3-month grace period for filing, she was still six months late. 41.The Applicant said she had not received the Board's decision sent to her reported address in July 2017. She said the mails in her building were always messy. She had to report to the Immigration Department every two weeks. Yet the Immigration Department only informed her of the result nine months later in April 2018. 42.The Board's decision was sent to the Applicant in July 2017. There was no evidence of undelivered or returned mail. The Applicant complained the mails in her building were messy and she learnt of the Board's decision only in April 2018 from the Immigration Department staff. The Applicant raised such bare assertion only in court when she was asked why she was late in her application for leave for judicial review. Nothing of that was stated in her affirmation or Form 86. I do not accept the Applicant's explanation for her lateness. 43.The Applicant was late in her application for leave for judicial review by six months. There was no good reason for the delay, which was undue and substantial. The prejudice that would be caused to the putative respondent would not be insignificant. Discipline should be maintained in the area of public law. The Applicant's application for leave for judicial review involved no issues of general importance and her argument had no merits at all (see below). 44.The Applicant mentioned she did not have legal representation after the Director's decision dated 16 August 2016. 45.The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings.[12] The Applicant failed to show how her case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process. 46.The Applicant raised her language problem. In the current application, someone helped her to prepare Form 86 and the affirmation. Apparently, the Applicant could find someone to assist her with interpretation/translation and dealing with English documents at all material times. Furthermore, the Applicant was assisted by qualified interpreters while she was still represented by the Duty Lawyer Service and during the screening process before the Director. [The Applicant chose to be absent from the appeal hearing before the Adjudicator.] The Applicant had much exaggerated her language problem. 47.The Applicant complained she got the appeal bundle late so she could not prepare well for the hearing. However, the Applicant did not present herself in the appeal hearing scheduled for 11 May 2017. There was no evidence that her absence from the Board hearing was inadvertent or related to her alleged prejudice in preparation. 48.I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for her finding, conclusion and decision which were not Wednesbury unreasonable. She made no errors of law and there was no procedural unfairness. The Applicant had been given reasonable and sufficient opportunities to state and elaborate her case before the Director. The Applicant chose to be absent from the appeal hearing before the Board. Nevertheless, the Adjudicator considered the Applicant's claim carefully. The Adjudicator was acquainted with the facts and applied the law correctly. She had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim. None of the Applicant's complaints is substantiated. Conclusion 49.The Applicant's application for leave for judicial review is unreasonably late. There are no justified circumstances to oblige the court to consider her late application. I therefore dismiss the application. Dated 30th day of January 2019
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 [1] As defined in Part VIIC of the Immigration Ordinance, Cap 115, which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. [2] By reference to the non-refoulement principle under Articles 33 and 1A(2) of the 1951 Convention relating to the Status of Refugees. [3] Under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383. [4] Under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383. [5] CACV 54/2018, para 45. [6] The Board's decision, para 6. [7] Ibid., para 7. [8] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45. [9] CACV 219/2018 [2018] HKCA 570, para 14(1). [10] CACV 110/2016 Kwok Cheuk Kin, para 17. [11] Ibid., para 19. [12] CACV 284/2017 Re Paswan Shibu Lal, para 21. |
Cases cited in this judgment
Further hearings and rulings under HCAL 664/2018