Cordoval Myrna Beniasen and Another v. Immigration Department

HCAL 265/2018

[2020] HKCFI 1633

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 265 of 2018

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 for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 12 July 2017 refused; and

2.  the application for leave to apply for Judicial Review dismissed.

Observations for the Applicants:

1.The 1^st Applicant (“A1”) is a 43-year-old national of the Philippines who last arrived in Hong Kong on 11 March 2009 with permission to work as a foreign domestic helper until the expiration of her employment contract on 23 July 2010 or within two weeks of its early termination.  On 17 June 2010 her contract was prematurely terminated but she did not depart and instead overstayed and was arrested on 3 November 2011.  After she was released from a 3-month imprisonment for breaching her condition of stay and was referred to the Immigration Department for deportation, she raised a torture claim on the basis that if she returned to the Philippines she would be harmed or killed by her creditor for failing to repay her loan, and after her torture claim was rejected, she sought non-refoulement protection on the same basis.

2.Whilst released on recognizance pending the determination of her non-refoulement claim, she formed a relationship with a Pakistan man who was also a torture claimer in Hong Kong, and became pregnant with their daughter the 2^nd Applicant (“A2”) who was subsequently born on 18 October 2013 after the Pakistani man had been deported, but when A1 later heard that the Pakistani man had threatened to snatch A2 away from her so that he could bring her to Pakistan to be raised as a Muslim, she also raised a non-refoulement claim for A2 on that basis, and which claim was to be jointly assessed with her own claim.

3.A1 was born and raised in Benguet Province, the Philippines.  After leaving school she worked as a salesgirl, married her husband and gave birth to 2 children.  Later she divorced her husband, and in 2007 she came to Hong Kong to work as a foreign domestic helper while her mother looked after her children in the Philippines.

4.In early 2009 while she was back home on holiday, she formed a business with her cousin by jointly borrowing a loan from the local money-lender for the business capital, and which loan was to be repaid by her cousin in the Philippines by monthly instalments with profits from the business.

5.However, in late 2010 the business was not doing well and as a result her cousin was unable to keep up with the loan repayments, and in December 2010 the cousin started to receive threats from their creditor that he and A1 would both be killed if the loan was not to be repaid soon.

6.Eventually her cousin had to close down the business, and to avoid threats from the creditor, he moved away from his home to live elsewhere and worked as a taxi-driver to make his living, but one night on 18 June 2011 he was found to have been shot dead in his taxi, and while the police did not know who the murderer was, A1 believed it to have been committed by the creditor, and soon her mother in the Philippines started to receive threatening letter and SMS that if A1 failed to repay the loan, she would end up dead like her cousin.  As a result A1 was afraid to return to the Philippines and instead overstayed in Hong Kong, and upon her subsequent arrest, she raised her non-refoulement claim for protection accordingly.

7.Whilst being released on recognizance, she formed a relationship with the Pakistani torture claimer and later became pregnant with A2, but before she gave birth to A2 the Pakistani man was repatriated to his home country.  Later when A1 ran into his cousin in Hong Kong, she was told that the Pakistani man had gone to the Philippines to assist his brother in his business, and when he heard that A1 had given birth to their daughter, he threatened to snatch A2 away from her so that she could be raised in Pakistan as a Muslim.  As A1 became fearful for A2’s safety, she accordingly also raised a non-refoulement claim for her, for which she completed a Non-refoulement Claim Form as well as a Supplementary Claim Form on 28 January 2015 respectively for A2 and herself, and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.     

8.By a Notice of Decision dated 12 March 2015 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 Ordinance, Cap 383 (“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”).

9.In his decision the Director took into account of all the relevant circumstances of the Applicants’ claim and assessed the level of risk of harm from A1’s creditor or A2’s father upon their return to the Philippines as low due to the absence of any past ill-treatment from either of them, that there was no reliable evidence of any threats from either of them other than some hearsay information from third parties or A1’s own speculation, that in any event their disputes were private personal monetary or domestic matters 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 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 A1 as an able-bodied adult with working experience to move with A2 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 creditor or A2’s father to locate them.

10.By a Notice of Further Decision dated 23 December 2016 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”).

11.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 25 March 2015, and for which they attended an oral hearing on 3 January 2017 before the Board during which A1 gave evidence and answered questions put to her by the adjudicator for the Board.  On 12 July 2017 their appeal was dismissed by the Board which also confirmed the decisions of the Director.

12.In its decision the Board found no direct evidence of any threats from either A1’s creditor or A2’s father in their claim that it was not satisfied that there would be any risk of harm to either of them whatsoever upon their return to the Philippines, and in any event in the absence of any official involvement that state/police protection would be available to the Applicants if needed that their claim for non-refoulement protection failed on all applicable grounds.  

13.On 21 February 2018 the Applicants filed their Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in their Form, and in A1’s supporting affidavit of the same date she merely stated that they want to review the decision because their dangerous situation had been disregarded, but she did not provide any particulars or elaboration as to how it was so, nor did she put forward any other grounds for their intended challenge or request for any oral hearing for their application.

14.By then the Applicants were also out of time with their intended application, as Order 53 rule 4(1) of the High Court Ordinance, Cap 4 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.

15.As the last day of the three-month period for the Applicants to file their Form 86 fell on 12 October 2017, they were therefore more than 4 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.

16.In the Applicants’ case, a delay of more than 4 months must be regarded as substantial or significant, for which they failed to provide any explanation, and as the record shows that the Board’s decision was sent to the Applicants on the same date by post to their last reported address and has not been returned through undelivered mail, I am not satisfied in the circumstances that there is any good reason for their significant delay.

17.Nor am I satisfied, for the reasons already noted above, that there is any merit in their intended application, 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 by the Applicants, I do not find any reasonably arguable basis to challenge the finding of the Board. 

18.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.

19.Furthermore, the fact is that it has been established by the Director in his 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, a decision also confirmed by the Board, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

20.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.

21.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 dismiss their leave application.

Dated the 23^rd day of July 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