Jemenez Rosenda Abapo v. Torture Claims Appeal Board

HCAL 796/2022

[2023] HKCFI 1447

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 796 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 / 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 16 March 2022 refused; and

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

Observations for the Applicant:

1.The Applicant is a 55-year-old national of the Philippines who last arrived in Hong Kong on 7 March 2018 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract or within 14 days of its early termination, but when her last employment was prematurely terminated on 17 August 2019, she did not depart and instead overstayed, and was arrested by police on 22 March 2020. 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 former boyfriend over their monetary dispute. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Davao Del Sur, the Philippines.  After leaving school she worked in various odd jobs in her home district.

3.In 2006 she met her former boyfriend and subsequently cohabited with him in Laguna Town, during which she discovered that he was a drug addict who was often abusive and violent towards her.

4.To avoid the frequent abuses, the Applicant in 2014 borrowed a loan from her former boyfriend to pay for her application to work as a foreign domestic helper in Hong Kong, which she subsequently did in October 2014.  

5.During her stay in Hong Kong, the Applicant would make regular remittances to her former boyfriend as repayment of her loan by instalments, but by 2016 she decided to leave him for good and stopped remitting any money to him, for which her former boyfriend threatened to kill her when she returned to the Philippines, and so after her last employment was terminated on 17 August 2019, the Applicant was afraid to return to the Philippines and therefore overstayed in Hong Kong, and after her arrest by the police she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 6 July 2020 and attended screening interview before the Immigration Department with legal representation.

6.By a Notice of Decision dated 29 October 2020 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”).

7.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real and substantial risk of her being harmed or killed by her former boyfriend upon her return to the Philippines as her claimed fear of harm from him that caused her to overstay in Hong Kong was considered as not credible, that even if such fear were true that the level of such risk from her former boyfriend was assessed as low due to the low intensity and frequency of past ill-treatment from him, that in any event it was a private monetary 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 109 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 Quezon City where it would be difficult if not impossible for her former boyfriend to locate her.

8.On 12 November 2020 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 4 May 2021 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 16 March 2022 her appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of her claim of fear of harm from her former boyfriend that caused her to overstay in Hong Kong, and that in any event even if such risk were true that it arose from a private monetary dispute between them without any official involvement that state/police protection would be available to the Applicant upon her return to the Philippines as well as reasonable internal relocation for her to move safely to other part of the country away from her home district without any risk of being located by her former boyfriend that her claim for non-refoulement protection failed on all applicable grounds.     

10.On 18 August 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 or in her supporting affirmation of the same date in which she just stated that she does not agree with the decision but without providing any explanation or reason.

11.By then the Applicant was also 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 date 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.

12.As the last day of the 3 month-period for her to file her Form 86 fell on 16 June 2022, the Applicant was therefore some 2 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.

13.In the Applicant’s case, a delay of 2 months must be considered as substantial and inordinate, for which she did not provide any explanation in her Form or affirmation, and as the record shows that the decision was sent on the same day to her then last reported address without being returned through undelivered post, I am unable to see any good or valid reason for her such serious delay.    

14.As for the merits, if any, of her intended application, as noted above the Applicant has also failed to put forward any proper ground for her intended challenge, and in the absence of any absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by her, I do not find any reasonably arguable basis for her intended challenge or any merits in her intended application either.

15.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.

16.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, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                

17.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.

18.Furthermore, the Applicant recently in writing requested to withdraw her application as her problem in her home country has been resolved that she now wants to return to the Philippines.

19.In the premises, as I am for the stated reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of her latest confirmation of no more problem for her to return to her home country, I accordingly dismiss her leave application.

Dated the 30^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