Meriales Maricel Gamiz v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 750/2019

[2023] HKCFI 1113

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 750 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:

1.  The extension of time for the application for Judicial Review be refused; and

2.  The application 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 4 August 2017 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). Her application filed on 18 March 2019 is late. The deadline for the application is 4 November 2017. The delay is serious. I shall deal with this issue 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 and her last employment contract permitted her to remain until 19 February 2017 or two weeks after termination of the contract, whichever was earlier. On 12 May 2015, her employment contract was prematurely terminated. However, she did not depart and had overstayed since 27 May 2015. On 7 July 2015, she surrendered to the Immigration Department. On 7 December 2015, she lodged a non-refoulement claim.

5.She gave birth to her son on 2 January 2016. On 24 April 2016, her son also surrendered to the Immigration Department. The applicant lodged a non-refoulement claim on 30 March 2016 on behalf of her son and claimed that the basis of her son’s claim was same as hers, namely, if refouled, they would be harmed or killed by her ex-boyfriend, Julius Zareno, and the ex-mayor, Wilfredo Tabag.

6.For the purpose of this leave application, it is noted that the applicant’s son did not seek for leave to apply for judicial review against the Board’s Decision.

7.According to the applicant, she met Julius in 2001 and they started cohabitation in 2003. Since 2008, Julius became insecure and always accused the applicant of meeting another man. He would assault and verbally abuse her almost on a daily basis. Unable to cope with the assaults, the applicant went to Singapore in 2009. However, she did not land any job and under Julius’s promise, the applicant returned to live with him again. Yet, she was again subject to his abusive acts. In 2010, she was pregnant with Julius’s kid. After several failed attempts to induce a miscarriage or an abortion, the applicant gave birth to their daughter. The physical and verbal abuses did not stop even after the birth of their daughter. In 2014, feeling unsafe, the applicant came to Hong Kong for work. In November 2014, she fell in love with Dexter in Hong Kong and was pregnant with his kid in April 2015. In July 2015, Julius found out about her pregnancy and started to threaten her.

8.As to the claimed fear of harm from the ex-mayor, she learnt from her ex-colleague that the ex-mayor was trying to locate the old staff so that he could ask them not to testify against him in a corruption case. The applicant was told that she was also wanted by the ex-mayor. As a result, she decided to stay in Hong Kong for protection. Details of her claim are set out at paragraph 6 of the Notice of Decision dated 5 August 2016 by the Director (the “Director’s First Decision”).

The Director’s Decisions

9.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”).

10.By way of the Director’s First Decision, the Director dismissed the claims of the applicant and her son as the level of risk of harm from Julius or the ex-mayor was assessed to be low. In elaboration, the Director found that (i) there was no evidence supporting that Julius had real intention to harm or kill the applicant and her son [13]-[14]; (ii) it was only a speculation that the ex-mayor and his subordinates would harm or kill them [15]; (iii) state protection would be available to them [16]; and (iv) internal relocation was a viable option [17].

11.In the Notice of Further Decision dated 22 May 2017, the Director also found that the right to life of the applicant and her son would not be violated and rejected their claims on the BOR 2 risk (the “Director’s Second Decision”).

12.For simplicity, the Director’s First Decision and the Director’s Second Decision will be referred to collectively as the “Director’s Decisions”.

The Board’s Decision

13.The applicant and her son appealed the Director’s Decisions to the Board. An oral hearing was scheduled to be on 7 July 2017. However, the applicant and her son were absent from the scheduled hearing. Despite the subsequent letter to the applicant inviting them to explain the absence, the Board did not receive any response [13].

14.The Board assessed her appeal on paper and considered that there were significant doubts in the applicant’s claim. While she pictured Julius as someone who was abusive and controlling, she was able to leave him on multiple occasions, i.e., to her parents’ house, to Singapore and ultimately to Hong Kong [41]. Both facts that the applicant continued to live with Julius and that she did not cut tie with Julius even when she was in Hong Kong were difficult to comprehend [42]. Her assertion that Julius learnt of her pregnancy through a neighbor lacked details [43]. In addition, Julius did not hurt their daughter as he threatened to do after the applicant left the Philippines [44]. As to the claimed fear of harm from ex-mayor, the applicant failed to adduce any documentary evidence in support of the alleged corruption case against the ex-mayor nor did she provide any support that the old staff were being chased after by the ex-mayor. She also did not mention that any officials, such as the police officers, had ever looked for her as a witness in a criminal case [45].

15.As a result, the Board found that the claims of the applicant and her son lacked credibility and dismissed their appeal.

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

16.The applicant has filed Form 86 dated 18 March 2019 for leave to apply for judicial review of the Board’s Decision.

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

DISCUSSION

18.As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. The deadline of her application is on 4 November 2017. The delay is about one year and four months. She has given no explanation for her delay and her application can be dismissed on this basis alone. Nevertheless, I shall first consider the merits of the applicant’s case.

19.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).

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

21.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.”

22.The Board had considered applicant’s evidence and did not believe it. There is no valid ground to challenge the Board’s Decision.

23.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.

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

CONCLUSION

25.Therefore, 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 11^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