Guardacasa Elena Martinez v. Torture Claims Appeal Board

HCAL 334/2019

[2022] HKCFI 1099

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 334 of 2019

Application for Leave to Apply for Judicial Review

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

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by (counsel for) the Applicant in open court / the Applicant being absent in open court;

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 3 July 2018 granted; and

2.  leave to apply for Judicial Review granted.

Observations for the Applicant:

1.The Applicant is a 51-year-old national of the Philippines who last arrived in Hong Kong on 20 November 2015 with permission to work as a foreign domestic helper until the expiration of her employment contract on 20 November 2017 or within 14 days of its early termination, but when her employment was prematurely terminated on 29 February 2016, she did not depart and instead overstayed, and was arrested by police on 17 March 2016. After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim on the basis that if she returned to the Philippines, she would be harmed or killed by her abusive boyfriend. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Puerto Princesa City, the Philippines. After leaving school she worked as a domestic helper in various places including Malaysia and Hong Kong.

3.In 2007 she returned to the Philippines and started cohabiting with her boyfriend Alfred in the house built by them in his home village in Bataan Province, during which however Alfred was frequently abusive and violent towards her by slapping, punching and kicking her as well as raping her against her will, and on one occasion attacked her with a knife when she was pregnant with their child.

4.The Applicant did not make any report of the abuses to the local police because it was in Alfred’s home village and she did not believe that the police would do anything, but to avoid further abuses from him and to protect her child, the Applicant asked to sell their house so that they could go their separate way, but Alfred refused and threatened to kill her should she dare to do anything about the house, and so the Applicant left him in 2010 by placing her child in the care of her parents in Palawan and returned to work in Malaysia.   

5.In March 2012 after the Applicant returned from Malaysia to stay in her parents’ home in Palawan, Alfred demanded money from her, and when she did not heed his demand, he then made death threats against her on the phone, but subsequently stopped when the Applicant later heard that he had been arrested by police for robbery and was sent to prison.

6.In March 2014 the Applicant departed for Hong Kong to resume her work as a foreign domestic helper, but later she started to receive death threats from Alfred again after his discharge from prison, and after her last employment was terminated on 29 February 2016, she was afraid to return to the Philippines and therefore overstayed in Hong Kong, and upon her subsequent arrest by the police on 17 March 2016, she raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 22 July 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

7.By a Notice of Decision dated 29 November 2016 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of 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 of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her boyfriend upon her return to the Philippines as low due to the low intensity and frequency of past ill-treatment from him, that it was a private personal dispute between them 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 102 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 working experience to move 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 her boyfriend to locate her.

9.On 12 December 2016 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but for which she failed to attend the scheduled hearing on 7 May 2018 and without providing any explanation for her non-attendance despite being requested thereafter by the Board to do so, and hence the Board proceeded to deal with her appeal in her absence and on papers, and on 3 July 2018 it dismissed her appeal and also confirmed the decision of the Director.

10.In its decision the Board found that it was unable to test the veracity of her claim and to discuss various issues of her claim in view of her failure to attend the oral hearing that it was not satisfied that there are substantial grounds for believing that she would be in danger of being harmed or killed as alleged or that she genuinely fears harm from her boyfriend or that there is a real risk that she will be so harmed upon her return to the Philippines that her claim for non-refoulement protection failed on all applicable grounds.   

11.On 4 February 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form or in her supporting affidavit of the same date to which she just attached a copy of the decision without putting forward any proper ground for her intended challenge. Nor did she request any oral hearing for her application.

12.By then the Applicant was also out of time with her application, as Order 53 Rule 4(1) of the Rules of 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 day 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.

13.As the last day of the three-month period for her to file her Form 86 fell on 3 October 2018, and hence the Applicant was 4 months 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: AW v Director of Immigration [2016] 2 HKC 393.

14.In the Applicant’s case, a delay of 4 months must be considered as substantial, for which she did not provide any explanation in her Form or affidavit, and as the record shows that the decision was sent on the same day to her last reported address without being returned through undelivered post, I am unable to see any valid reason for her delay.

15.As for the merits of the intended application, as noted above the Applicant has not put forward any proper ground for her intended challenge either, but given the gravity of what is at stake in her claim and the serious consequences of the Board’s decision, high standards of fairness require that the reasons in rejecting the Applicant’s claim and dismissing her appeal be scrutinized by the Court for any error of law or irrationality or procedural unfairness.

16.In the Board’s decision, the Adjudicator in her consideration of the claims and evidence of the Applicant noted the following serious issues of violence against women in general in the Philippines:

“36. The Appellant is subject to removal to a place outside Hong Kong and has not claimed that he has a right of abode in any other country except the Philippines. In considering the applicable grounds under the USM, I accept that the Appellant is a citizen of the Philippines and her non-refoulement claims have been assessed against the Philippines for the purposes of considering the Torture Risk, BOR 2 Risk, BOR 3 Risk, and the Persecution Risk.

37. The COI before the Board indicates that violence against women is one of the most persistent and alarming issue faced by the Philippines. According to a survey conducted by the National Statistics Office (“NSO”) in 2008 one in every five Filipino women aged between 15 and 49 has experienced violence. The type of violence included physical, sexual, during pregnancy and spousal violence.

38. The United States Department of State Human Rights Report for 2016 states that rape, including spousal rape is illegal with penalties ranging from 12 to 24 years imprisonment with pardon or parole possible only after 30 years imprisonment. As of July of that year 5,973 cases of rape were reported to the PNP, significantly more than in the same period in 2015. There continued to be reports of rape and sexual abuse of women in police or protective custody and women from marginalised groups such as suspected prostitutes, drug users and indigent individuals arrested for minor crimes were more likely to be victims of sexual violence. The Department of Social Welfare and Development (DSWD) provided shelter, counselling and health services to female survivors of rape.

39. The same report states that “domestic violence against women remained a serious and widespread problem”. The report states that the law criminalises physical, sexual and psychological harm or abuse to women and children committed by their spouses, partners, or parents. As of July, the PNP reported 16,007 cases of domestic violence against women and children. The DSWD extended assistance to 232 survivors of physical abuse and mistreatment, a small fraction of reported incidents, which were likely to be only a fraction of total incidents. NGOS noted that in smaller localities perpetrations of abuse sometimes used personal relationships with the local authorities to avoid prosecution. The PNP and DSWD both maintained help desks to assist survivors of violence against women and encourage reporting …”

17.The Adjudicator then proceeded to explain why she was unable to make any finding that the Applicant had been harmed or assaulted by her boyfriend in the past or that she fears harm from him in the future as follows:

“40. I accept that the COI set out above confirms that domestic violence is a serious problem in the Philippines. However, as stated above I determined that an oral hearing was necessary. This is because there were several aspects of the Appellant’s claims which I would have wished to discuss with her. These included for example:

(i) The truthfulness of the Appellant’s claims regarding the violence.

(ii) The length of time since she left the Philippines and her lack of contact with Alfred since that time.

(iii) Her willingness to return to her village on a number of occasions after she claims to have been assaulted both physically and sexually by Alfred.

(iv)State protection issues and relocation issues.

(v) The delay in the lodgement of the application for non-refoulement protection, and the fact she did so only at the time she was arrested by the police in Hong Kong.

41. Whilst noting the difficulties claimants in this area can have in obtaining corroborating evidence, and that the exercise in determining whether a particular claim is valid is one of joint endeavor, the onus is nevertheless on the Appellant to make out her case. Her failure to attend the hearing and to provide oral evidence to the Board means that I have effectively been denied the ability to question her about her claims relating to the domestic violence and their veracity. I cannot, therefore, be satisfied that the Appellant cannot return to the Philippines as a result of any harm she may sustain from Alfred, who is her former husband. Without further evidence from the Appellant I am unable to make a finding that she fears harm from Alfred or that she has been harmed or physically or sexually assaulted by him in the past or that she will suffer harm of this type from him in the future.”

18.On this basis the Adjudicator went on to state the same reasons of not being able to test the veracity of the Applicant’s claims or to discuss issues with her such as the availability of state protection or relocation in terms of whether it would be unreasonable and not unduly harsh for her to live elsewhere in the Philippines in rejecting the Applicant’s claims under each of the applicable grounds (see [43] – [61]).

19.It is however clear that notwithstanding the Applicant’s failure to attend the hearing and hence the absence of her oral evidence to the Board, there were information and materials submitted for her claim in her appeal before the Board, of which the Adjudicator did allude to in the decision, including the Applicant’s written representations for her claim, her NCF and record of interview before an immigration officer as well as her notice of appeal in the hearing bundle supplied by the Director for her appeal (see [9] of the Board’s decision), all of which the Adjudicator was required to take into account in assessing the evidence of the Applicant’s claim, but did not appear to have done so in the decision, nor was there any elaboration as to why the Adjudicator found it unable to determine the credibility of the claim in the absence of oral evidence from the Applicant in her appeal hearing.

20.In Re Hidayah [2018] HKCA 595, Chu JA in giving the judgment of the Court of Appeal explained why it was necessary for the Board to give proper reasons for dismissing an appeal notwithstanding the absence of any oral evidence from the applicant:

“15. The Board decided the appeal against the applicant because it was unable to determine her credibility due to her failure to attend the hearing, and, in the absence of oral evidence, it was unable to determine whether there was a real risk or there were substantial grounds for believing that the applicant would suffer the harm she claimed to fear if she were to return to Indonesia. This is notwithstanding the board had, in considering the appeal, taken into account the materials in the hearing bundle supplied by the Director (see [10] of the Board’s decision). There was no elaboration on why the Board’s inability to determine the credibility of the claim and whether the claimed fear of harm was well-founded should lead to a dismissal of the appeal. As we understand the Board’s reasons, it had not made any finding, and there was no adverse finding, on the credibility of the applicant’s case or on whether there was a basis for the claimed fear of harm. Although an applicant bears the burden of satisfying the Board that the claimed fear and risk is well-founded, if no adverse finding of credibility could be made on an applicant’s case, the Board would have to proceed to analyse and assess his claim against all applicable grounds on the basis that his case is plausible.

16. We are of the view that the applicant’s complaint that the Board had failed to give, or had given insufficient, reasons for dismissing her appeal against the Director’s decisions is an arguable ground, and that leave to apply for judicial review should be given on this ground.”                  

21.In the premises, and for similar reasons, I am of the view that it is also reasonably arguable that the Board in the present case had failed to give any or sufficient reasons for dismissing the Applicant’s appeal against the Director’s decision, and that notwithstanding her delay in the filing of her Form 86, high standards of fairness require that in the circumstances leave should be granted to the Applicant to apply for judicial review of the Board’s decision.    

22.Accordingly, I extend time for the Applicant to do so, and direct that she shall within 14 days of this decision issue an originating summons on the ground stated above, and to serve a copy thereof together with all the relevant documents on the Board as respondent and on the Director as interested party.

Dated the 14^th day of April 2022.

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