Valles Julie Ann Caranto v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 779/2019

[2023] HKCFI 1165

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 779 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 Applicant being absent in open court;

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

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 7 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s BOR 2 Decision”) refusing to allow the applicant’s late filing of notice of appeal/petition against the Director’s Second Decision as described below.

2.The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, I shall deal with her application on paper.

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 16 September 2011. However, her employment contract was prematurely terminated on 20 June 2012. She was required to leave within two weeks. However, she did not depart and had overstayed since 5 July 2012. On 21 June 2013, she was arrested by the police. On 14 April 2014, 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, Valles Oscar Paderon, and a couple of loan sharks.

5.According to the applicant, she married her husband on 14 May 1996. Her husband was from Valles family which was rich and influential. However, her own family was middle class. In around 1997, her husband became addicted to drugs and their family financial situation worsened. Her husband refused to seek assistance from the Valles and demanded the applicant to work and support their family. Initially, the applicant worked as a laundry lady but the income was insufficient. Her husband became abusive and assaulted her on several occasions. She then decided to work in Hong Kong in 2002. From 2002 to 2004, she would remit the salary to her husband. However, her mother told her that he spent the sum on alcohol and drugs. She then changed to send money to her mother. Upon knowing the change, her husband threatened and hit the applicant’s mother. When the applicant’s employment contract was terminated in 2005, she returned to the Philippines. The physical and mental abuses from her husband continued and escalated.

6.Thereafter, her husband took her to the loan sharks and borrowed money for her overseas employments. While abroad, in 2007, she learnt from her mother that her husband got into troubles with her family members and other villagers. On 28 March 2009, the applicant returned home to attend her son’s graduation ceremony. She did not encounter her husband during this visit. In May 2011, she started to receive letters from the loan sharks demanding the repayments. In September 2011, she came to work in Hong Kong again.

7.In around February 2012, her mother informed her that her husband had returned to the village. He later sent threatening messages to the applicant’s Hong Kong number. Meanwhile, her mother also received a message asking them to repay the loan. Out of fear, the applicant decided to stay in Hong Kong for protection. Details of her claim are set out at paragraph 6 of the Notice of Decision dated 28 July 2015 (the “Director’s First Decision”).

The Director’s Decisions

8.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”).

9.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 past events did not support her assertions that her husband or the loan sharks had the intention to cause harm or kill her and there was no state involvement in these disputes [16]-[37]; (ii) state protection would be available to her [38]-[45]; and (iii) internal relocation was a viable alternative [46]-[49]. In passing, the Director also noted that her delay in seeking non-refoulement protection undermined her credibility [50]-[53].

10.In the Notice of Further Decision dated 11 April 2017, the Director found that the applicant’s right to life would not be violated and thus rejected her claim on BOR 2 risk (the “Director’s Second Decision”).

The Board’s Decisions

11.The applicant first appealed the Director’s First Decision to the Board. On 11 August 2016, the Board conducted an oral hearing for her appeal. The applicant chose not to testify in the hearing [4].

12.At the outset, the Board rejected the applicant’s claimed risk of harm from the loan sharks on the basis of lack of evidence [2]. It then proceeded to consider the claimed risk of harm from the husband. The Board noted that the dispute with the husband had no state involvement [7]-[9]; that the alleged injuries failed to attain a minimum level of severity [10]; that, while she was raped by her husband, it was 9 years ago and she conceded that her husband had ceased to demand sex long before she came to Hong Kong [11]; and that internal relocation was proven to be available according to the country of origin information [15]-[21]. As a result, the Board rejected the applicant’s claim on Torture risk. For the same reasons, it also rejected her claim on the remaining grounds. Independently, the Board found that her delay in lodging the non-refoulement claim undermined her credibility [33]-[36].

13.For the aforesaid reasons, by way of a decision dated 18 January 2017, the Board rejected the applicant’s claim and dismissed her appeal against the Director’s First Decision (the “Board’s First Decision”).

14.On 5 June 2017, the applicant filed a notice of appeal/petition against the Director’s Second Decision. She was around 1 month and 9 days out of time [5]. The Board rejected the applicant’s explanation of change of address as it was her responsibility to notify the Board about the change of address [8.1]-[8.2]. It also noted that the applicant’s grounds of appeal only contained a summary of her claim which had been ventilated in the Board’s First Decision [9]. In any event, based on the findings of the Board’s First Decision, her appeal was devoid of merits.

15.As a result, by way of the Board’s BOR 2 Decision, the Board refused to allow the applicant’s late filing of notice of appeal/petition.

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

16.The applicant has filed Form 86 dated 20 March 2019 for leave to apply for judicial review of the Board’s Second Decision.

17.In her affidavit in support of her application, the applicant did not raise any specific ground.

DISCUSSION

18.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).

19.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

20.The question before this Court is whether the Board was correct to refuse to extend time to the applicant to file her notice of appeal and whether there are any merits in her application.

21.The applicant has an obligation to keep the Director and the Board up to date as to her address or telephone number for communication. The Court of Appeal in Re: Karamjit Singh [2018] HKCA 460, 2 August 2018 held:

“14. … …It is the duty of a litigant/claimant to give the authority an address to which correspondence or notice can come to his attention in timely manner. The consequence of any delay occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant/claimant, see: Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Said Umair v Torture Claims Appeal Board [2018] HKCA 82; and Re Saqlain Muhammad [2018] HKCA 346….”

22.In any event, there is no merit in the applicant’s application as she had failed in her claim on the other risks, particularly the BOR 3 risk. The Court of Appeal in Kulwinder Kaur v Director of Immigration and Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2022] HKCA 48, 7 January 2022, held

“59. … upon determining that there is no BOR 3 risk, there is no arguable ground for any BOR 2 risk: see AA v Sweden (2017) 64 EHRR 20 at [52] and [96]; RM v Gerard Paul Muttrie Esq (unrep., HCAL 166/2015, 3 March 2016) at [52].”

23.There is no valid ground to challenge the Board’s Second Decision.

24.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.

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

CONCLUSION

26.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Second Decision. Accordingly, I dismiss her application.

Dated the 10^th day of May 2023

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