Guarte, Elsie Lodovice v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2253/2023

[2024] HKCFI 806

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2253 of 2023

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 leave to apply 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 28 December 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). Her application is late. Her application shall not be later than 3 months from the date of the Board’s Decision[1], which is 28 March 2019. Her application was filed on 14 December 2023, which is more than 3 years and 11 months. This issue will be dealt with below.

2.The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with her application on paper.

The applicant

3.The applicant, aged 42, is a Filipino. She arrived in Hong Kong on 5 February 2010 to work as a domestic helper. Her contract was prematurely terminated on 26 October 2010 and she overstayed since 10 November 2010. She surrendered to the Immigration Department on 16 July 2015 and was subsequently sentenced to imprisonment for 14 weeks for breach of condition of stay. The applicant made a non-refoulement claim on 3 October 2015. The claim was made on the basis that, if refouled, she would be harmed or even killed by her ex-boyfriend because she had a relationship with another man in Hong Kong and gave birth to a son with him.

4.According to the applicant, she met her ex-boyfriend in 2000. They fell in love with each other and she gave birth to two daughters with him in 2001 and 2003. The applicant claimed that her ex-boyfriend became aggressive since the birth of her first daughter. He attempted to attack her with a chopper twice. He would use abusive words against the applicant and slap her on her face. He would also punch her at her waist, thighs and shoulders. Despite the continuous assault of her ex-boyfriend, the applicant did not report the matter to the police, nor did she seek any medical treatment.

5.In March 2005, the applicant moved to her parents’ home with her children, as she could not tolerate the ill treatment from her ex-boyfriend. Between 2005 and 2008, she went to work in Seoul with a music band. When the applicant returned to her parents’ home in the Philippines in May 2008, her ex-boyfriend came over nearly every month demanding her to move back to his place with the children. When the applicant refused, he would slap her on her face. There were even two occasions when he threatened her with a kitchen knife. Again, the applicant chose not to report the matter to the police.

6.The applicant came to Hong Kong to work as a domestic helper on 5 February 2010. She met her current boyfriend in May 2010 and gave birth to a son with him in December 2013. The applicant kept her relationship in Hong Kong secret from her family, as she was afraid that they might slip such information to her ex-boyfriend, who would harm or even kill her if he found out her affairs in Hong Kong.

7.The applicant maintained contact with her family after her arrival in Hong Kong. She was informed by her mother and her children that her ex-boyfriend was still asking for her whereabouts.

8.The applicant considered relocation within the Philippines not viable as she had no financial resources or other means to settle elsewhere. She could hardly earn a living for herself and her children with her previous working experiences. The applicant was also of the view that she could not seek protection from the police because they were corrupt and she had no money to bride them. She might be revenged by her ex-boyfriend too if he found out that she filed a case against him.

9.Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 21 May 2018 (“the Director’s Decision”).

The Director’s Decision

10.The Director considered the applicant’s claim in relation to the following risks:

a.  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”);

b.  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

c.  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 Decision, the Director dismissed the applicant’s claim. The Director found that the low intensity and frequency of past ill-treatment from her ex-boyfriend is indicative of a small future risk of harm upon her return to the Philippines. Her behaviour of not reporting the assault to the police was also inconsistent with a person who is genuinely in fear of being harmed [12]-[14].

11.In any event, (i) state protection will be available to her upon her return [16]-[17]; (ii) internal relocation is viable [15], [18]-[21] and (iii) the applicant’s case failed to meet any of the requirement under BOR 2 and BOR 3 risk [22]-[27], Persecution risk [28]-[32] or Torture risk [33]-[35].

The Board’s Decision

12.The applicant appealed the Director’s Decision to the Board. On 3 December 2018, the Board conducted an oral hearing.

13.Having considered the applicant’s evidence, the Board found that the applicant’s case failed to meet any of the requirements under Torture risk [5]-[13], [19], BOR 2 and BOR 3 risk [20]-[25] or Persecution risk [26]-[30]. Furthermore, internal relocation is also available to her taking into account the Country of Origin Information [14]-[18]. The Board also considered the substantial delay of the applicant to raise a non-refoulement claim undermined her credibility and found her unreliable [31]-[34].

14.For the above reasons, the Board dismissed the applicant’s appeal and confirmed the Director’s Decision.

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

15.The applicant has filed Form 86 dated 14 December 2023 for leave to apply for judicial review of the Board’s Decision.

16.The applicant did not raise any specific ground in his affidavit in support of this application.

DISCUSSION

17.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. I shall consider the merits of the applicant’s case.

18.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s 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).

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

20.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.”

21.There is no specific ground in support of the applicant’s application. Nor is there any explanation for her delay, which is serious. There is no reason for the Court to interfere with the Board’s Decision.

22.The applicant therefore fails to show that she has any realistic prospect of success in her intended judicial review of the Board’s Decision.

CONCLUSION

23.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 25^th day of March 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