Cacabelos Remma Baltazar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 105/2019

[2022] HKCFI 3561

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 105 of 2019

Application for Leave to Apply for Judicial Review

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

Following:

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court.

Order by Deputy High Court Judge K.W. Lung:

1.  Extension of time for the Applicant to apply for leave to apply for Judicial Review be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 2 September 2016 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). The application filed on 11 January 2019 is late[1]. This issue will be dealt with below.

2.The applicant requested an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court held a hearing on 21 September 2022 and the applicant was present.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.

The applicant

4.The applicant is a national of the Philippines. She entered Hong Kong as a foreign domestic helper on 5 August 2011 and was permitted to remain until 8 August 2013 or two weeks after the termination of contract, whichever was earlier. Her employment contract was terminated prematurely on 12 March 2012 and she was required to leave on or before 26 March 2012. She did not depart and had overstayed since 27 March 2012. On 12 November 2015, she was arrested by the police. On 14 January 2016, she lodged a non-refoulement claim. Her claim was made on the basis that, if refouled, she would be harmed or killed by her husband Cacabelos Joseph.

5.According to the applicant, she married Joseph in 2010. Since their marriage, Joseph became addicted to alcohol. Whenever he was drunk, he became abusive and had attacked the applicant on two occasions. The day after the second attack in September 2010, the applicant escaped to her parents’ house and her last contact with Joseph was in November 2010. While she was in Hong Kong, she learnt that Joseph kept looking for her. Thereafter, the couple had a heated argument over the custody of their son, which led to Joseph’s threats towards the applicant. Out of fear, the applicant stayed in Hong Kong for protection. Details of her claim are set out at paragraph 6 of the Notice of Decision dated 20 May 2016 by the Director (the “Director’s First Decision”).

The Director’s Decisions

6.The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.By way of the Director’s First Decision, the Director dismissed the applicant’s claim on the grounds of Torture risk, BOR 3 risk and Persecution risk. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [12]-[14]; (ii) state protection would be available to her [15]-[16]; and (iii) internal relocation was a viable alternative [17].

8.In the Notice of Further Decision dated 24 November 2016, the Director also rejected the applicant’s claim on BOR 2 risk as her right to life would not be violated upon refoulement (the “Director’s Second Decision”).

The Board’s Decision

9.The applicant only appealed the Director’s First Decision to the Board. On 16 August 2016, the Board conducted an oral hearing for her appeal.

10.The Board considered the relevant country of origin information (“COI”) on the availability of the government’s protection for women and children [37]. It also considered the applicant’s assertions that Joseph wished to take custody of their son and threatened to kill her if he saw her [38]. The Board opined that Joseph could get the custody of their son through the court proceedings without inflicting any harms on the applicant [39]. When these COI were referred to the applicant for comments, she stated that she had no comments [41]. Having considered all the evidence, the Board found that the applicant’s claim was not substantiated [47]-[60]. In any event, internal relocation was found to be available for the applicant [78]-[88]. As a result, the Board rejected the applicant’s claim and dismissed her appeal.

Application for leave to apply for judicial review of the Board’s Decision

11.The applicant has filed Form 86 dated 11 January 2019 for leave to apply for judicial review of the Board’s Decision.

12.In her affirmation in support of her application, the applicant stated the grounds below.

(1)  The Board had unlawfully fettered its discretion by refusing the applicant’s appeal on the grounds that they did not satisfy the requirements.

(2)  The adjudicator acted in a procedurally unfair manner in dealing with the applicant’s appeal. The applicant was not told to make written submissions.

(3)  The Board’s Decision is unreasonable or irrational or is the result of procedural errors or unfairness.

(4)  The Board failed to meet the greater care and duty owed to a self-represented claimant.

DISCUSSION

13.As mentioned in paragraph 1, the applicant’s application is seriously late. The Court has to consider the length of the delay, the reasons for the delay, the prospect of the intended application and the prejudice to the putative respondent if extension of time is granted. Also, the Court should not grant extension for a hopeless application. See AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 and Re Adumekwe Rowland Ejike [2019] HKCA 702, §19. The deadline for her to file her application for leave to apply for judicial review is on 2 December 2016. The delay is 2 years and 39 days. The delay is therefore serious and her application can be dismissed as she has not given any explanation for the delay. I shall, nevertheless, first consider the merits of the applicant’s case.

14.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

15.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said she understands the Board’s Decision and she simply wants to stay.

16.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

17.The grounds in paragraph 12 above do not assist her application. The Board has no obligation to inform her that she may make written submissions. The applicant has not been able to say what disadvantage this procedural omission had caused to her. The other grounds are only her assertions or opinions without any evidence in support.

18.The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

19.The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.

CONCLUSION

20.I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

Dated the 23^rd day of November 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