Padua Monalyn Oriel v. Torture Claims Appeal Board

HCAL 1372/2019

[2023] HKCFI 2524

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1372 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:

1.  Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 15 August 2017 be refused; and

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

Observations for the Applicant:

1.The Applicant is a 58-year-old national of the Philippines who last arrived in Hong Kong on 13 April 2008 with permission to work as a foreign domestic helper until the expiration of her employment contract, but on 20 September 2013 she was arrested for having previously used a false travel document and for making false representations to an immigration officer for which she was subsequently convicted and sentenced to prison for 9 months, during which she raised a non-refoulement claim on the basis that if she returned to the Philippines she would be harmed or killed by her husband’s creditors over his unpaid debts.  She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Santo Domingo, Nueva Ecija, the Philippines. After leaving school she worked as a storekeeper and a factory worker before coming to Hong Kong in 1988 under a passport with a different identity to work as a foreign domestic helper.

3.In 1991 while working in Hong Kong she married her husband also from the Philippines working as a foreign domestic helper, and subsequently gave birth to their 2 daughters in Hong Kong.

4.Upon the expiration of her then employment contract in January 1994, the Applicant did not depart and instead overstayed in Hong Kong, for which she was subsequently convicted in July 1997 and was sentenced to prison for 4 months, and upon her discharge from prison she was repatriated to the Philippines in October 1997 together with her daughters.

5.Earlier in the same year of 1997 her husband also returned to the Philippines upon the expiration of his last employment in Hong Kong, but upon the Applicant’s return in October 1997, they did not resume cohabitation as her husband spent most of his time in Manila where the Applicant heard that he had become addicted to illegal drugs and was working as a drug dealer.

6.In 2001 the Applicant returned to Hong Kong under another passport with her present identity to resume working as a foreign domestic helper and to remit money to her parents in the Philippines for the support of her daughters.

7.During one of her trips to return to the Philippines in March 2008 for holiday, some men came to her home looking for her husband claiming to be his creditors, and when they were told by the Applicant that he was somewhere else in Manila, those men then demanded that the Applicant being his wife should repay the debts for him, and when she was unable to do, they warned that next time when they returned, she had better be prepared to pay, or else she would be killed.

8.Fearing for her life, the Applicant left the Philippines to return to Hong Kong to continue with her employment, but on 20 September 2013 she was arrested by the Immigration Department for having earlier used a false passport and for making false representations to an immigration officer, for which she was subsequently convicted and sentenced to prison for 9 months, and after her discharge form prison and was referred to the Immigration Department for deportation, as she was afraid to return to the Philippines she therefore raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 5 August 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

9.By a Notice of Decision dated 1 September 2016 and a Notice of Further Decision dated 9 June 2017 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”).

10.In his decisions 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’s creditors upon her return to the Philippines as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill her other than to put pressure on her to repay her husband’s debts, that since their threats made in 2008 that it is not accepted that they would still have any adverse interest in her after all these years since she left the country, 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 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’s creditors to locate her.

11.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decisions, and for which she attended an oral hearing on 10 July 2017 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 15 August 2017 her appeal was dismissed by the Board which also confirmed the Director’s decisions.

12.In its decision the Board found inconsistencies discrepancies and implausibility in the Applicant’s evidence that it doubted the credibility of her claim of fear of harm from her husband’s creditors which was further undermined by her dishonesty in using a false travel document and for making false representations to an immigration officer that it rejected her claim and concluded that it was not satisfied that she will face any prospect of being harmed by anyone upon her return to the Philippines in the foreseeable future that her claim for non-refoulement protection failed on all applicable grounds.    

13.On 21 May 2019 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 asserted that the decision was unfair and unreasonable but without providing any details or particulars or elaboration as to how it was so or put forth any proper ground for her intended challenge, nor did she request any oral hearing for her application.  

14.By then the Applicant was also seriously 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.

15.As the last day of the 3 month-period for her to file her Form 86 fell on 15 November 2017, the Applicant was therefore more than 1 ½ years 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.

16.In the Applicant’s case, a delay of more than 1 ½ years must be considered as extremely substantial and inordinate, for which she failed to provide any explanation in her Form or affirmation, and as the record shows that the decision was sent on the same day of 15 August 2017 to her then reported address without being returned through undelivered post, I am unable to see any good or valid reason for her such serious delay.    

17.As for the merits, if any, of her intended application, as noted above that the Applicant has also failed to put forward any proper ground for her intended challenge.  As such, and in the 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 the Applicant, I do not find any merits in her intended application either.

18.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.

19.In the Applicant’s case, the fact is that it has also been correctly established by the Director in his decision that the risk of harm in her claim if real is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of the Philippines, a decision also confirmed by the Board, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                

20.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.

21.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for her such serious delay, I refuse to extend time and accordingly dismiss her leave application.

Dated the 4^th day of October 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