Dadivas Ma Catherine Ayroso v. Torture Claims Appeal Board

HCAL 2580/2019

[2023] HKCFI 2280

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2580 OF 2019

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:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 55-year-old national of the Philippines who last arrived in Hong Kong on 11 February 2007 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 24 February 2008 or within 14 days of its early termination, but when it was prematurely terminated on 19 May 2007, she did not depart and instead overstayed, and was arrested by police more than 5 years later on 27 December 2012 for which she was subsequently convicted of breaching her condition of stay and was sentenced to prison for 6 months. After she was discharged from prison and was referred to the Immigration Department for deportation, she then raised a non-refoulement claim on the basis that if she returned to the Philippines she would be harmed or killed by her husband or his brother over their monetary/loan dispute. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Iloilo City, Iloilo, the Philippines. After leaving school she married her first husband in her former marriage and raised a family with 4 children in her home district.

3.After her first marriage ended in a divorce, the Applicant subsequently in about 2003 married her present husband Nicolas, and in May 2005 she started a grocery store by borrowing a loan from her husband’s brother Diddy to be repaid within one year and with monthly interest payments.

4.However, the business of her grocery store did not fare well and was eventually closed down in November 2005, and when she was unable to repay her loan, Diddy then made threats against her, and so the Applicant applied to come to Hong Kong to work as a foreign domestic helper in order to repay her loan by instalments, which she did on 24 February 2006 to start her first employment, but later when she again failed to make any loan repayment, Diddy started to harass her husband Nicolas over her outstanding loan, which upset Nicolas who also made similar threats against her, and so after her last employment was terminated, the Applicant was afraid to return to the Philippines, and therefore overstayed in Hong Kong, and upon her subsequent arrest by the police, she then raised her non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 18 March 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

5.By a Notice of Decision dated 26 January 2015 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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”).

6.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 her husband or his brother upon her return to the Philippines as low due to the low intensity and frequency of past ill-treatment from them, that there was no evidence of any real intention off them to seriously harm or kill her other than to press her to repay her loan, that in any event these were just private monetary or domestic disputes 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 107 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 areas of the country away from her home district in large cities such as Manila where it would be difficult if not impossible for her husband or his brother to locate her.

7.On 5 May 2015 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which the Board did not find it necessary to hold any oral hearing, and proceeded to deal with the appeal in the absence of the Applicant and on paper, and on 28 June 2016 the Board dismissed her appeal and confirmed the Director’s decision.

8.In its decision the Board accepted the Applicant’s claim of fear of harm from her husband or his brother over their monetary or loan dispute but found that they were private monetary/domestic disputes between them without any official involvement that state or 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 that her claim for non-refoulement protection failed on all applicable grounds.

9.Meanwhile on 20 January 2017 the Director on his own initiative invited the Applicant to submit any additional facts which she may consider relevant to her non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute and non-derogable rights under the HKBOR including right to life under Article 2 (“BOR 2”), and in the absence of any response from her, the Director by a Notice of Further Decision dated 13 April 2017 also rejected the Applicant’s BOR 2 Claim upon finding that she had failed to establish a personal and real risk of her absolute and non-derogable rights under the HKBOR including right to life under BOR 2 being violated upon her return to the Philippines.

10.On 31 January 2018 the Applicant again lodged an appeal to the Board against the Further Decision of the Director, but as her Notice of Appeal was filed outside the 14-day period required by Section 37ZS (1) of the Immigration Ordinance, and in pursuance of Section 37ZT (2) of the Ordinance the Board proceeded to decide as a preliminary decision without a hearing whether to allow the late filing of the Notice of Appeal, and by a Decision dated 20 August 2019 the Board refused to allow the late filing of the Applicant’s Notice of Appeal.

11.In this decision the Board found that the deadline for the Applicant to file her Notice of Appeal to be 5 May 2017, that she was therefore more than 7 months late when it was filed on 31 January 2018, that her explanation of not receiving the Director’s decision until 2 days prior to the filing as no more than a bare assertion which is unacceptable, that it was significant that she failed to produce any documentary evidence such as the envelope which contained the decision to show the postal chop, and that there were no other relevant matters of fact within the Board’s knowledge amounting to special circumstances which would make it unjust not to allow the late filing of her Notice of Appeal.            

12.On 4 September 2019 the Applicant filed her Form 86 for leave to apply for judicial review of this decision of the Board, 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 wants to review the decision as it disregard her dangerous situation but without putting forth any proper ground for her intended challenge, nor did she request any oral hearing for her application. As such and in the absence of any error of law or irrationality or procedural unfairness in her application for late filing of her appeal to the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge.

13.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.

14.In the Applicant’s case, the Board rightly refused to allow her late filing of the Notice of Appeal regarding her BOR 2 Claim in the absence of any valid reason for her such serious delay, and although the Board did not specifically mention in its decision of having taken into account of the merits of the appeal, given the facts that the Applicant had been found by the Director to have failed to submit any additional facts or information in support of her BOR 2 Claim, that her non-refoulement claim under all other applicable grounds had already been properly rejected by the Board in its earlier decision without any legal challenge, and that in any event even on the factual basis of her own case that the Applicant’s claim simply did not engage the BOR 2 ground. As such I am unable to find any reasonably arguable basis to challenge the findings of the Board.  

15.The fact is that it has already been established by both the Director and the Board in their earlier decisions that the risk of harm in the Applicant’s 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.                

16.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 the Director’s consideration and assessment of the Applicant’s BOR 2 Claim or in the Board’s decision to refuse the late filing of her Notice of Appeal, or for that matter in their earlier decisions on the Applicant’s non-refoulement claim on all other applicable grounds.

17.Furthermore, the Applicant recently on 9 June 2023 filed an affirmation requesting to withdraw her application as it is now safe for her to return to her home country.

18.In the premises, as I am for the given 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 that it is safe to return to her home country, I accordingly dismiss her leave application.

Dated the 6^th day of September 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