Guzman Marichi Cortez v. Torture Claims Appeal Board /Non-refoulement Claims Petition Office

HCAL 886/2018

[2019] HKCFI 2549

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 886 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Order by Deputy High Court Judge Bruno Chan:

1.  extension of time be granted to the Applicant to file her Notice of Application for Leave to Apply for Judicial Review (“Form 86”); and

2.   leave be granted to the Applicant to apply for judicial review of the Torture Claims Appeal Board (“the Board”)’s decision dated 25 January 2017.

It is further directed that:

3.   the Applicant shall file an originating summons within 14 days from the date of the order herein and to serve a copy thereof together with all other relevant documents on the Board as the respondent and the Director of Immigration as the interested party.

Observations for the Applicant:

1.The Applicant is a 37-year-old national of the Philippines who arrived in Hong Kong on 2 April 2014 with permission to work as a foreign domestic helper until the expiration of her employment contract on 2 April 2016 or within 14 days of its early termination.  On 1 December 2014 she was arrested by police for theft and was subsequently convicted and sentenced to prison for eight months, and as a result her employment was terminated.  Uponher discharge from prison she was referred to the Immigration Department when she raised a non-refoulement claim on the basis that if she returned to the Philippines she would be harmed or killed by her family for converting from Christianity to Muslim and/or by her creditor for failing to repay her loan.  On 13 June 2015 she was released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Cardona, Dolores, Abra, the Philippines into a Catholic family in which her parents and siblings were all devout Catholics and that she was baptized at birth.  In 2011 she went to work as a foreign domestic helper in Singapore where she met some Muslim friends and became interested in their religion Islam by regularlyjoining their religious activities and reading the Koran with them.

3.In 2013 she returned to her home in the Philippines and expressed her desire to convert to Muslim by dressing in hijab and refusing to eat pork, but much to her family’s objection that she was subsequently beaten by her brothers while her parents would lock her inside the house refusing to allow her to go out as their Christian neighbours were all appalled by her behavior.

4.One day in February 2014 the Applicant managed to escape and fled to hide in her friend’s place in Quezon City, Metro Manila where she decided to get away from the threats of her family by applying for employment as a foreign domestic helper in Hong Kong, for which she then borrowed a loan from a money-lender for the expenses, for which she was torepay by monthly instalments from her monthly salary, and so on 2 April 2014 she departed for Hong Kong to start her employment contract and to remit her loan repayments to her creditor in the Philippines from her monthly salary.

5.In August 2014 she formally converted into a Muslim in Hong Kong, and informed her mother accordingly, but upon hearing about it her brothers started to make phone calls to her scolding her for bringing humiliation to the family and threatening to kill her upon her return to the Philippines.

6.On 1 December 2014 she was arrested by police for theft and was subsequently convicted and sentenced by the court to prison for eight months.  As a result her employmentcontract was terminated and she was unable to repay her loan, for which she was threatened by her creditor that she would be killed upon her return to the Philippines.  Hence, upon her discharge from prison in May 2015 and her subsequent detention at the Castle Peak Bay Immigration Centre (“CIC”) pending repatriation to the Philippines, she raised her non-refoulement claim for protection from risks of harm from her family and/or her creditor,for which she completed a Non-refoulement Claim Form on 2 June 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.By a Notice of Decision dated 19 June 2015 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”),risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights (“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”).

8.In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that she would be in dangerof being harmed or killed by her brothers or her creditor upon her return to the Philippines due to the absence or low intensity and frequency of past ill-treatment from them, that her problems with her brothers and her creditor were either family domestic dispute or personal monetary dispute 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 107 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 work experience to move to other part of the Philippines awayfrom her home district in large cities such as Manila or Cebu where it would be difficult if not impossible for her brothers or her creditor to locate her.

9.On 6 July 2016 the Torture Claims Appeal Board (“the Board”) received a Notice of Appeal from the Applicant against the Director’s decision, but for which she was more than one year late, as section 37ZS(1) of Part VIIC of the Immigration Ordinance, Cap 115 (“the Ordinance”) requires that the notice of appeal must be filed within 14 days after the notice of the decision is given to the applicant, and in the Applicant’s case, the Director’s decision was sent to her DLS on the same day of 19 June 2015, hence the last day of the 14-day period for her to lodge her notice of appeal fell on 3 July 2015, and she was therefore late by about one year with her appeal.

10.For late filing of appeal, section 37ZT(1) provides that the notice must include an application for late filing with a statement of the reasons for failing to file the notice within the period and accompanied by any documentary evidence relied on in support of such reasons, whereupon subsection (2) provides that the Appeal Board must decide, as a preliminary decision without a hearing, whether to allow the late filing, and in doing so the Board may only take account of:

(a) the statement of reasons stated in the application for late filing of the notice of appeal and any accompanying documentary evidence relied on in support of those reasons;and

(b) any other relevant matters of fact within the knowledge of the Board.

11.Subsection (3) also provides that if the Appeal Board is satisfied that by reason of special circumstances, it would be unjust not to allow the late filing of the notice of appeal,the Board may allow the late filing of the notice, and by written notice inform the applicant accordingly.

12.In her Notice of Appeal dated 30 June 2016, the Applicant, who was by then no longer legally represented, included the following statement of reason for her late filing:

“ dear sir/madam I sincerely appalogists for this late appeal but I honestly say that last June 2015 I send my appeal through post office at tsim tsa tsui Branch. I really don’t know why your office never receive my appeal letter,I also have the receipt from my property outside, I can only send to you the receipt if Im outside. But Im currently detained here in castle peak Bay immigration.” [sic]

13.In its decision dated 25 January 2017, the Board adopted the approach of a three- stage enquiry laid down by the United Kingdom Court of Appeal in The Secretary of State for the Home Department v Begum [2016] EWCA Civ 122, and found the Applicant’s delay of one year in the filing of her appeal a serious and significant failure on her part to comply with the rules, that she had no good reason for her breach, and that there were no other matters known to the Board or revealed by the factual basis of the Applicant’s claim which might amount to special circumstances and which might make it unjust not to allow the late filing of her notice of appeal, and therefore refused her application. 

14.On 22 March 2017 the Director wrote to the Applicant to invite her to submit additional facts, if any, which she might consider relevant to her non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

15.Upon receiving no response from the Applicant, the Director by a Notice of Further Decision dated 10 April 2017 found that she has failed to establish a personal and real risk of her absolute and non-derogable rights under the HKBOR being violated including right to life under BOR 2 upon her return to the Philippines.

16.On 18 October 2017 the Applicant again lodged an appeal to the Board against the Director’s Further Decision, and again she was late with her Notice of Appeal, on this occasion by almost six months, as the 14-day period for her to do so expired on 24 April 2017, and in her statement she did not provide any reason for her delay but merely just repeated her claim that her problems back home had still not resolved and that it was not yet safe for her to return her home country.

17.In its decision dated 22 June 2018 the Board again found a delay of six months a serious and significant failure to comply with the rules, that the Applicant had failed to give any good reason for such delay, and that there were no other matters known or revealed by the factual basis of the Applicant’s claim which might amount to special circumstances that might make it unjust not to allow the late filing of her notice of appeal, and therefore refused her late filing. 

18.Meanwhile on 21 May 2018 the Applicant filed her Form 86 for leave to apply for judicial review of a decision of the Board, which must be treated as against the first one dated 25 January 2017 as the second decision was by then not yet given, and in her Form 86she put forward two grounds for her intended challenge which I have summarized as follows:

(1) that the Board erred in failing to apply high standards of fairness in determining her claim and in failing to deliver its decision to her within reasonable period of time thereby causing prejudice to her; and

(2) that the adjudicator did not act fairly in dealing with her claim.

19.The Applicant was by then again seriously late with her Form 86, as Order 53, rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.

20.As the last day of the three-month period for her to file her Form 86 fell on 25 April 2017, the Applicant was therefore more than one year late with her application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration; see Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393.

21.In the Applicant’s case, a delay of more than one year must be considered as very substantial or excessive, for which she explained in her supporting affirmation that she never received the Board’s decision from the mail, and that she was only told about it when she reported to the Immigration Department, but by then she was already way out of time.   

22.When the Applicant filed her Form 86 on 21 May 2018, it is plain from the Form and her supporting affirmation that she was then being detained at Castle Peak Bay Immigration Centre (“CIC”), and while it is not clear when exactly was she first being detained there, in her Notice of Appeal dated 30 June 2016 she also claimed to being so detained, a fact which seems to have been accepted by the Board when it noted that she was subsequently released on recognizance on 1 August 2016 ([17]), and hence in between then and May 2018 she must have been detained again by the Immigration Department,no doubt with the various restrictions arising from such detention, and with no longer any legal assistance all must have conspired to contribute to any problem she might have in compliance with the deadline, but in the absence of any documentary evidence such as confirmation from the Immigration Department, it is not possible for me to assign how much weight to that factor for her serious delay.  As such I propose to focus on the merits,if any, of her intended application.

23.As noted above, the Applicant’s complaints appear to me just some broad assertions that the Board failed to apply high standards of fairness in her case without providing any useful or relevant particulars or elaborations as to how it was so, but given the fact that the Board’s decision was to refuse her late filing of her Notice of Appeal, it follows essentially that her complaint must be that in doing so the Board failed to apply high standards of fairness.

24.Section 37ZT(3) of the Ordinance provides the Board with the discretion to allow late filing of a notice of appeal if it is satisfied that by reason of special circumstances it would be unjust not to do so by taking account of the reasons given by the applicant for the delay, as well as “any other relevant matters of fact within the knowledge of the Board”.

25.In Re Khan Kamal Ahmed [2019] HKCA 377, CACV 563/2018, 2 April 2019, [16] – [20], the Court of Appeal held that in exercise of such discretion whether to extend time for appeal, it is incumbent on the Board to take the merits of the applicant’s claim into account regardless of the procedural breaches or the lack of explanation therefor; and in Re Qasim Ali [2019] HKCA 430, CACV 547/2018, 8 April 2019, the Court of Appeal in citing Re Khan Kamal Ahmed held that nothing would be more unjust not to allow the late filing of a notice of appeal where the appeal is meritorious, and that it is for the Board as the primary decision-maker to take account of the merits of the appeal, albeit on paper without a hearing, in deciding whether to extend time ([25] – [26]).

26.In the present case, the Board in its 1^st stage of the Begum enquiry alluded to in its decision rightly found that the Applicant’s delay of one year to be a serious and significant failure to comply with the rules, and that in the 2^nd stage upon examining the reason given by the Applicant, it was also entitled to find such reason as vague, but for the 3^rd stage of the enquiry, it simply stated as follows:

“ 20. Following the 3^rd stage referred to in Begum, I evaluated all the circumstances in this case and arrived at the conclusion that it is fair and just to refuse the Appellant’s application.

21. There were no other matters known to me or revealed by the factual basis of the Appellant’s claim which might amount to special circumstances and which might make it unjust not to allow the late filing of the Notice of Appeal.”    

27.In the premises I am of the view that it is reasonably arguable that the Board failed to take into account adequately or at all the merits of the Applicant’s appeal by considering the substance of her non-refoulement claim as already set out not only in the materials of the Hearing Bundle before the Board, but also in the Applicant’s Notice of Appeal, all of which were clearly relevant matters of fact within the Board’s knowledge as stipulated by section 37ZT(2)(b) of the Ordinance.

28.Accordingly, I extend time and grant leave to the Applicant to apply for judicial review of the Board’s decision based on the above ground, and direct that she shall file an originating summons within 14 days from the date of this decision, and to serve a copy thereof together with all other relevant documents on the Board as the respondent and the Director as the interested party.

Dated the 9^th day of December 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