Sagayadoro Nanette Sagadraca and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1010/2017

[2020] HKCFI 1928

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1010 OF 2017

BETWEEN

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Order by The Honourable Mrs Justice Campbell‑Moffat:

Leave to apply for judicial review be refused.

Observations for the Applicants:

Procedural history

1.The 1^st applicant entered Hong Kong legally as a foreign domestic helper (“FDH”) on 21 October 2009 but her contract was prematurely terminated on 19 July 2010 and thereafter she overstayed.  She surrendered to the Immigration Department two years later on 29 June 2012, a month before the birth of her child, the 2^nd applicant, on 6 July 2012.  The 1^st applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 24 March 2014.  Her NRF claim form was submitted on 25 March 2015 and 20 March 2015, for the child.

2.The 1^st applicant attended a screening interview on 29 April 2015.  The Director of Immigration (“the Director”) dismissed their claim on all grounds (not including that under BOR 2) by Notice of Decision on 7 May 2015 and by Notice of Further Decision (re BOR 2) on 14 March 2017.  They appealed the Decisions to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr Selwyn Au (“the Adjudicator”), rejected their appeal on 27 January 2016 without a hearing but conducted a hearing on 26 June 2017 in respect of BOR 2.  That appeal was dismissed on 25 July 2017.

3.The applicants filed a notice of application on a Form 86 seeking leave to apply for judicial review on 5 December 2017, which is out of time.  They did not request an oral hearing.  The matter was therefore considered on the papers.

Background

4.The applicants are Filipino nationals.  The 1^st applicant comes from Santo Tomas.  She was married in 1996 in the Philippines and has two children of that marriage who are in their late teens.  The 2^nd applicant was born out of wedlock after a relationship with another FDH.  The father has since returned to the Philippines and she has not heard from him since.  The 1^st applicant fears she will be harmed or killed by her husband if returned to the Philippines because he had been an abusive husband.  Her husband found out about her affair and threatened her not to return.  This was in 2010.  She believes him to have become a member of the New People’s Army, which is a rebel group.

Form 86 out of time

5.In accordance with Order 53, rule 3, the applicants filed a notice of application on a Form 86 seeking leave to apply for judicial review.  This was dated 5 December 2017. Under Order 53, rule 4 an application for judicial review shall be made promptly and in any event within three months from the date when the grounds for the application first arose.  Where the relief sought is a review of a case tried in a lower court, the relevant date from which time runs is the date of that decision.  In this case time ran from 27 January 2016 and 25 July 2017 and expired on 27 April 2016 and 25 October 2017 respectively.

6.It is incumbent upon the applicants to provide good reason for extending time.  The applicants have submitted no explanation for their delay and have not sought leave for an extension of time.  I have nevertheless considered the principles[1] applicable to granting such an extension if an application had been made and those are:

1)     the length of delay;

2)     the reasons for delay;

3)     the prospects of success in the intended appeal; and

4)     the prejudice to the putative respondent and administration of justice if extension of time were granted.

7.In this case, the applicants were late by 1 year 7 months 8 days and 1 month 10 days respectively.  The 1^st applicant has not offered any explanation for this delay save that she did not receive the decision[2]. Nor for that matter has she explained why it took a further four months to apply for legal aid, which she did not do until 19 April 2018.  In view of the absence of good reason for the delay in filing their Form 86, they must satisfy the court that there is a reasonable prospect of success in their intended leave application and that there will be no prejudice to the putative respondent or administration of justice if an extension of time were to be granted.  As to the latter, there is no suggestion there would be any such prejudice, save that it is in the interest of justice for matters subject to judicial review to be dealt with expeditiously.  This application therefore turns upon the likelihood of success of their application for judicial review.

8.Judicial review is not a rehearing of the merits of the applicants’ original application for refugee status.  As the applicants have already utilised the channel of appealing the Director’s decision to the TCAB and the TCAB treated the appeal as a rehearing, the decision of the Director is not susceptible to judicial review once an appeal to the board has been pursued by the claimants and dealt with.  It can therefore only be an application to apply for leave to judicially review the Decision of the Adjudicator.  The applicants must therefore show an arguable case that there was either unlawfulness, unreasonableness or unfairness by the Adjudicator when dealing with their application in order to obtain an extension of time to seek leave to judicially review that Decision.

9.The 1^st applicant did submit some grounds of review.  She complains that she should have been given a hearing in respect of her first appeal; that in respect of her second appeal there was a lack of legal representation and lack of assistance from an interpreter; and, thereafter, the Adjudicator wrongfully rejected the evidence of her husband’s new connections under her BOR 2 claim.  In essence she complains that she wished to be present, properly represented and with an interpreter to explain her position.  That may be the case but her position was a simple one.  She was married to a man who was abusive to her; she came to Hong Kong to avoid him; she met someone else and had a baby by him and that man has since left.  The Adjudicator cannot be criticised for assuming that her claim could not get much higher than that in interview before him when she had the opportunity previously to say all she wished before the Director and at a time when she had been represented and had the benefit of an interpreter.

10.The applicants’ claim was extremely weak.  The papers weresufficient for the Adjudicator to consider the claim without a hearing which he chose to do.  It is open to him to do that.  Nevertheless, and because of additional evidence being submitted in respect of their application under BOR 2, the Adjudicator called for a hearing for that appeal.  All of the papers which were before the Director, were before the Adjudicator.  The case was a simple one.  It was a bare assertion that the 1^st applicant was at risk of serious harm from her husband for having an affair in Hong Kong.  This was made more likely because of his new association with a rebel group in the Philippines.  Unfortunately, this had no bearing upon a claim under BOR 2 in the circumstances of this case and that explanation was rejected.  Nevertheless, the Adjudicator reiterated, as he had previously, that this was a personal dispute as between husband and wife.

11.In the absence of any good reason for the delay, the court has considered the grounds, the facts as relied upon by the applicants and the application of the law to those facts by the Adjudicator, along with the explanation given by him within the Decision.  Having analysed that Decision, the applicants’ NRF claim is extremely weak and was rejected on that basis after due process.  There is no reasonably arguable basis upon which the applicants could found a claim for judicial review and, as such, there would be no realistic prospect of success if they were to be granted an extension of time to apply for leave to judicially review that Decision.

12.This application is refused.

Dated the 7^th day of August 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