Mayo Cecilia Pinto v. Torture Claims Appeal Board

HCAL 600/2022

[2022] HKCFI 3070

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 600 of 2022

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 the Applicant 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 8 January 2019 refused; and

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

Observations for the Applicant:

1.The Applicant is a 46-year-old national of the Philippines who last arrived in Hong Kong on 30 January 2010 with permission to continue to work as a foreign domestic helper for the duration of her employment contract, but on 4 February 2010 she was arrested by police for the offence of obtaining property by deception for which she was subsequently convicted and sentenced to prison for 7 months. Upon her discharge from prison 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 in revenge by the family of a fellow town resident injured in a fight with the Applicant’s brother and/or by her former husband over their monetary disputes, and after her torture claim was rejected, she then sought non-refoulement protection on the same bases. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Anao Town, Tarlac Province, the Philippines. After leaving school she worked as a company secretary, married her husband and raised a family with a son in her husband’s town in Camiling in Tarlac.

3.In 2000 her husband left the family to cohabit with another woman, but after she found out that he had mortgaged his house for loans for his use, and when his creditors came to demand for repayments or sale of the house, the Applicant therefore left and returned to her parents’ house in Anao.

4.One day in July 2005 her younger brother was involved in a fight with one of his friends while being drunk and injured his friend with a knife, and when the family of his injured friend threatened to take revenge against her family, the Applicant and her parents moved to Camiling to avoid the threats, but later when her father was discovered being killed while working in the farm, the Applicant suspected that he was killed in revenge by the family of the injured friend of her younger brother.

5.To avoid further threats from that family, the Applicant in October 2008 departed the Philippines to come to Hong Kong to work as a foreign domestic helper.

6.In December 2009 when she returned to the Philippines for vacation, she was approached by her former husband for money to repay his debts, and when she refused, he then uttered threats against her, but she managed to make her escape back to Hong Kong in January 2010 to resume her employment.

7.However, later in March 2010 her employment was terminated after she was sent to prison for the offence of obtaining property by deception, and upon her discharge from prison and was referred to the Immigration Department for deportation, she then raised her non-refoulement claim for protection, for which she completed a Supplementary Claim Form (“SCF”) on 21 May 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

8.By a Notice of Decision dated 21 June 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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”).

9.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 the family of the injured friend of her brother or her former husband upon her return to the Philippines as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill the Applicant, that in any event her problems with them were private disputes 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 104 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 country away from her home district in large cities such as Manila where it would be difficult if not impossible for anyone to locate her.

10.On 4 July 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 12 October 2018 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 8 January 2019 her appeal was dismissed by the Board which also confirmed the decision of the Director.

11.In its decision the Board found the Applicant’s evidence as to her account of events occurred prior to her departure for Hong Kong inconsistent contradictory and unconvincing that it doubted the credibility of her claim of fear of harm from her perceived enemies for seeking non-refoulement protection in Hong Kong, that her family has since 2005 moved to Silang in the Province of Cavite without any further incidents, and that on her own admission that it would also be safe for her to move to live with her family in Silang without any fear of harm from her perceived enemies that it concluded that her claim for non-refoulement protection failed on all applicable grounds.

12.On 11 July 2022 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, and in her supporting affirmation of the same date she just repeated her claim as before and complained that the decision wrongly refused her claim without proper inquiry or careful understanding of her situation in her home country but without providing any further details or particulars or elaboration in support her assertions.

13.By then the Applicant was also seriously out of time with her 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 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.

14.As the last day of the three-month period for her to file her Form 86 fell on 8 April 2019, the Applicant was therefore more than 3 years 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.

15.In the Applicant’s case, a delay of more than 3 years must be considered as extremely substantial and inordinate, for which she explained at the hearing of her application that at that time she did not have any money to pay for the court fees for the issue of her Form 86, and later she was arrested for failing to report on her recognizance, and has since been detained at the Castle Peak Bay Immigration Centre (“CIC”), and eventually when she was able to obtain assistance to issue of her Form 86, she was already way out of time with her intended application.

16.The record shows that the Board’s decision was sent on the same day of 8 January 2019 to the Applicant’s then reported address without being returned through undelivered post, and while I accept that she might have needed both legal and financial assistances with her application and that it might have also been compounded by her subsequent detention at CIC, they cannot in my view excuse such serious delay of the Applicant with her application.

17.As for the merits, if any, of her intended application, as noted above the Applicant did not put forth any proper ground in her Form 86 or affirmation for her intended challenge, and at the hearing of her application she just repeated her claim as before and that she has been told by her mother that her enemies are still looking for her in her home country that she cannot return but without putting forth any proper ground to challenge the Board’s decision. As such I do not find any merits in her intended application either.

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.In the Applicant’s case, 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 her claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of the Philippines such as Silang where her family has been living since 2005 without any incidents, there is simply no justification to afford her 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 Applicant’s claim.

21.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for her serious delay, I refuse to extend time and accordingly dismiss her leave application.

Dated the 7^th day of October 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