Fabio Arlyn Timogan and Others v. Evan Ruth, Esq., Adjudicator of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 442/2018

[2020] HKCFI 79

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 442 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:

Leave to apply for judicial review refused.

Observations for the Applicants:

1.The 1^st Applicant (“A1”) is a 41-year-old national of the Philippines who last arrived in Hong Kong on 18 September 2010 with permission to work as a foreign domestic helper until the expiration of her employment contract on 18 September 2012 or within two weeks of its early termination.  On 9 October 2010 her contract was prematurely terminated, but she did not depart and instead overstayed until 15 February 2011 when she surrendered to the Immigration Department and was released on recognizance, during which she subsequently gave birth to her children, the 2^nd and 3^rd Applicants (“A2” and “A3”) out of wedlock with a Muslim man in Hong Kong, and when a removal order was issued by the Immigration Department against them, A1 then raised a non-refoulement claim for herself and her children on the basis that if they returned to the Philippines they would be harmed or killed by A1’s husband for having an affair with the Muslim man and/or by her family for converting her religion from Christianity to Islam. 

2.A1 was born and raised as a Catholic in Tagana-an, Surigao del Norte, the Philippines. After leaving school she worked as a domestic helper, married her husband and gave birth to a daughter.

3.Her husband was a rough man working as a bodyguard and would become abusive to A1 when drunk, and in 1998 their relationship started to deteriorate when her husband was unhappy with A1 returning to work as a domestic helper in Manila, and the situation became worse when A1 went overseas to work as a foreign domestic helper first in Kuwait and later in 2008 in Hong Kong.

4.During her first employment contract in Hong Kong in 2009, A1 met a Muslim man with whom she later formed a relationship and in late 2010 became pregnant which led to the early termination of her employment contract and her subsequent overstay in Hong Kong,during which she gave birth to A2 and A3 respectively in 2011 and 2015 and converted her religion to Islam, and when she received telephone calls from her husband threatening to kill her over her affair with the Muslim man, and when her family also made threats against her for converting her religion to Islam, she raised her non-refoulement claim for protection for herself and her children, for which she completed a Non-refoulement Claim Form and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.By a Notice of Decision dated 22 July 2016 the Director of Immigration (“the Director”) rejected the Applicants’ 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”).

6.In his decision the Director took into account all the relevant circumstances of the Applicants’ claim and assessed the level of risk of harm from A1’s husband and/or her family to the Applicants upon their return to the Philippines as low due to the absence or low intensity and frequency of past ill-treatment from them, that all their threats were only verbal with no reliable evidence of any real intention to harm or kill her, that in any event A1’s problems with them were private domestic disputes without any official involvement that state or police protection would be available to the Applicants 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 100 million people spread across a vast territory of more than 298,000 square kilometers that it would not be unduly harsh for A1 as an able-bodied adult with work experience to move safely with her children to other part of the Philippines away from her home district in large cities such as Manila where it would be difficult if not impossible for A1’s husband or family to locate them.

7.By a Notice of Further Decision dated 18 May 2017 the Director again rejected the Applicants’ claim in the absence of any response from them to an earlier invitation to submit additional facts which may be relevant to their 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”).

8.By then the Applicants were already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 4 August 2016, and for which they attended an oral hearing on 18 May 2017 before the Board during which A1 gave evidence and answered questions put to her by the adjudicator for the Board.  On 6 July 2017 their appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.In its decision the Board found no valid reason for A1 to fear any kind of harm from her husband or her family upon her return with her children to the Philippines in the absence of any reliable evidence of any threats from them in the Philippines, and that in any event there is no reason why A1 cannot safely return with her children to Manila being her last place of residence and employment in the Philippines where it would be difficult if not impossible for her husband or her family to locate them that their claim for non-refoulement protection failed on all applicable grounds.

10.On 11 September 2017 A1 by herself only filed a Form 86 in HCAL 608/2017 for leave to apply for judicial review of the decisions of the Director and the Board, but no ground for seeking relief was given either in her Form or in her supportive affirmation in which she merely exhibited copies of those decisions, and on 12 March 2018 her leave application was refused by Wong J upon finding no reasonably arguable case existed, that there was no error of law or procedural unfairness in her process before the Director or the Board or in their decisions, and that there was no prospect of success in her intended application.

11.A1 did not lodge any appeal against that decision, but instead on 19 March 2018 she filed another Form 86, this time for both herself and A2 and A3, for leave to apply for judicial review of the Board’s decision only, and on this occasion she did in her supporting affirmation of the same date put forward the following eight grounds for their intended challenge:

(1) procedural impropriety/unfairness in the adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of their claim;

(2) irrationality in the adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of their claim;

(3) irrationality in the adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in the Philippines;

(4) irrationality in the adjudicator’s failure to analyze and assess whether state protection exists in the Philippines and misdirected himself as to the extended meaning of state protection;

(5) irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(6) procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the Applicants;

(7) procedural impropriety/unfairness in the adjudicator applying the incorrect standard of proof in his decision; and

(8) procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the Applicants resulting in unfair procedure.  

12.For A1 clearly the principle of res judicata applies to her case, and it is an abuse of process for her to re-litigate her case by bringing a second judicial review in respect of the same decision of the Board after she failed to obtain leave from the Court in HCAL 608/2017 which had found no reasonably arguable case to challenge the decision.

13.As for A2 and A3, even putting aside for the time being that their case relies entirely on A1’s, they are seriously out of time with their intended application, 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.

14.As the last day of the three-month period for them to file their Form 86 fell on 6 October 2017, they were therefore more than five months late with their 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.

15.In the Applicants’ case, a delay of more than five months must be considered as substantial or excessive, for which A1 did not provide any explanation other than her claim of being ignorant of the rules which of course cannot be accepted as any valid reason for their non-compliance.

16.As for the merit of the intended application, their proposed grounds as stated above are all just broad and vague assertions containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to their case or how the Board or the adjudicator had erred in the decision, or in what way did the adjudicator fail to take into account relevant COI or being selective or improperly rely on irrelevant COI,or why it was necessary or relevant to call for psychological or psychiatric evaluations in their case, or in what way was the legal representation from their assigned lawyer insufficient. None of these assertions were elaborated or presented with any particulars or specifics by the Applicants, and in the absence of any error of law or procedural unfairness in their process before the Board or in its decision being clearly and properly identified with sufficient particularity,I do not find any reasonably arguable basis to challenge the finding of the Board.

17.As has been repeatedly emphasized by the Court of Appeal, 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 Applicants,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.

18.The fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicants’ claim is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of the Philippines, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

19.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 Applicants’ claim.

20.For these reasons I am not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review, and in the absence of any good reason for their delay, I refuse to extend time and accordingly refuse their leave application.

Dated the 15^th day of January 2020.

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