De Guzman Marina Orleans v. Torture Claims Appeal Board

HCAL 1797/2023

[2024] HKCFI 129

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1797 OF 2023

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;

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 28 September 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 55-year-old national of the Philippines who last arrived in Hong Kong on 13 January 2012 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 13 January 2014 whereupon she failed to depart and instead overstayed in Hong Kong, and 2 years later on 11 February 2016 she surrendered to the Immigration Department and 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 for leaving him. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Cabayaosan, Paniqui Tarlac, the Philippines. After leaving school she worked in various jobs in her home district, and in 1992 she formed a relationship with her boyfriend in Pasig City, Manila where they cohabitated and raised a family with 2 children.

3.Soon the Applicant discovered that her boyfriend was an alcoholic and when drunk would become violent and abusive towards her, and after a particular violent incident in 2011 when he beat her severely and threatened her with a knife, the Applicant found herself unable to tolerate his abuses anymore, and so on the following day while he was out, she brought the children to return to her mother’s home in San Pedro, Laguna.

4.However, a week later her boyfriend came to her mother’s home to demand that the Applicant to return to his place with the children, and when she refused and threatened to call the police, her boyfriend left but warned her that next time when he returned and if she still refused to go with him, he would kill her.

5.Thereafter the Applicant fled with the children to her sister’s place in Calamba, but as she still feared of being located and killed by her boyfriend, she therefore departed the Philippines in April 2011 for Hong Kong to work as a foreign domestic helper and ceased all contact with her former boyfriend, but after her last employment contract expired in January 2014, she was afraid to return to the Philippines and therefore overstayed in Hong Kong, and 2 years later in February 2016 she surrendered to the Immigration Department and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 24 February 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 26 April 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”).

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 risk of her being harmed or killed by her former boyfriend upon her return to the Philippines due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of him to seriously harm or kill her or that he would still have any adverse interest in her after all these years since she left the country and ceased all contact with him in 2011, that in any event it was a private and personal dispute between the 2 of 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 102 million people spread across a vast territory of more than 298,000 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 former boyfriend to locate her.

8.On 5 May 2017 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 25 August 2017 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 28 September 2017 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board found material inconsistencies and discrepancies in the Applicant’s claim that it doubted her claim of fear of harm from her former boyfriend that caused her to overstay in Hong Kong to seek non-refoulement protection, that there is no evidence of any real intention of her former boyfriend to seriously harm or kill her in particularly after all these years since she left him in 2011 that it is not accepted that he would still have any adverse interest in her, and that in any event it was a private relationship dispute between the 2 of 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.

10.On 6 October 2023 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her supporting affirmation of the same date she put forward the following grounds for her intended challenge:

(1)  That the Board reached the wrong decision by rejecting her claim without any proper enquiry or careful understanding of her situation;

(2)  That if she had not run away she would have been killed by her enemy and that her problems were getting more and more life-threatening day after day and had no choice but to escape to Hong Kong to seek asylum;

(3)  That she cannot understand anything written in the decision as she does not speak or read any Chinese so it was impossible for her to prepare any proper grounds for her application.

11.By then the Applicant was however 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.

12.As the last day of the 3 month-period for her to file her Form 86 fell on 28 December 2017, the Applicant was therefore some 5 years and 10 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 4 years and 10 months must be considered as extremely substantial and inordinate, for which she explained at the hearing of her application that she had been suffering from pain in her thighs and fever all these years that she had not been able to leave her home to file the Form 86 until her recent detention by the Immigration Department when she was able to obtain assistance to do so.

14.The Applicant however failed to provide any documentary or medical evidence to corroborate her barest of assertions, that she appeared healthy and physically normal to me at the hearing, and that the record shows that the decision was sent on the same day of 28 September 2017 to her last reported address without being returned through undelivered post, I am not satisfied that the Applicant has provided any good or valid reason or justification for her such serious delay.

15.As for the merits, if any, of her intended application, all her listed grounds as noted above are just some vague and bare assertions of the Applicant containing a few key words or phrases but without any relevant or necessary particulars or specifics or elaboration as to how they apply to her case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision wrong or that the Board had failed to make any proper enquiry or to have any proper understanding of her situation, while it is clearly factually incorrect for her to complain of not being able to understand the decision as it was clearly not written in Chinese as claimed but in English which she can well understand and had had legal assistance in preparing her present application. 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 reasonably arguable basis for her intended challenge or any merits in her intended application either.

16.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.

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

18.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.

19.For the reasons given 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 9^th day of January 2024

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