Esmana Nhona Magware v. Torture Claims Appeal Board
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HCAL 2038/2023 [2024] HKCFI 1592 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2038 OF 2023
Application for Leave to Apply for Judicial Review Following:
Order by Deputy High Court Judge Bruno Chan:
Observations for the Applicant: 1.The Applicant is a 36-year-old national of the Philippines who last arrived in Hong Kong on 24 February 2018 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 24 February 2020 when she did not depart and instead overstayed, and almost one year later on 4 January 2021 she surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if she returned to the Philippines she would be harmed or killed by members of the terrorist group National People’s Army (“NPA”) for refusing to work for them. She was subsequently released on recognizance pending the determination of her claim. 2.The Applicant was born and raised in Lira City, Batangas, the Philippines. After leaving school she worked in various jobs in her home district, and in 2007 she was recruited by NPA to spread their political philosophy and to carry out minor assignments for them in her local village such as rounding up voters for them during local elections until later when she got married and raised a family with 3 children that she stopped working for NPA. 3.One day in 2013 she was approached by several NPA members to resume her work for them who also made threats to harm her and her family if she refused to do so, and so the Applicant yielded to their demand and resumed carrying out assignments for them as before mainly to recruit voters for them during local elections. 4.As NPA is regarded as terrorists by the government, the Applicant decided to cut her relationship with them by leaving the country to work as a foreign domestic helper in Hong Kong, which she did on 24 December 2016. 5.However, after her last employment was completed on 24 February 2020, she was afraid to return to the Philippines for fear of reprisals from the NPA and therefore overstayed in Hong Kong, and upon 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 17 June 2021 and attended screening interview before the Immigration Department with legal representation. 6.By a Notice of Decision dated 11 August 2021 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 assessed the level of risk of harm from those local NPA people 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 force them to work for them, that it is not accepted that after all these years since she last worked for them in 2013 before she left the country that they would still have any adverse interest in her, that in any event in the absence of 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 111 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 the NPA to locate her. 8.On 27 August 2021 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 26 May 2022 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 8 August 2022 her appeal was dismissed by the Board which also confirmed the Director’s decision. 9.In its decision the Board accepted the Applicant’s evidence of her past involvements with the NPA but found they were all just low level activities mainly helping them out by recruiting voters during local elections which occurred many years ago in 2013 that it is not accepted that the NPA people would still have any adverse interest in the Applicant after all these years since she left the country that it concluded that she would not face any real risk of harm from the NPA upon her return to the Philippines that her claim for non-refoulement protection failed on all applicable grounds. 10.On 15 November 2023 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 her supporting affirmation of the same date to which she just attached a copy of the decision but without putting forth any proper ground for her intended challenge. 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 day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made. 12.As the last day of the three-month period for her to file her Form 86 fell on 8 November 2022, the Applicant was therefore more than 12 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 more than 12 months must be considered as very substantial and inordinate, for which she did not provide any explanation or reasons in her Form or affirmation, and as the record shows that the Board’s decision was sent on the same day of 8 August 2022 to her 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 that the Applicant has failed to put forth 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 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 decisions 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, 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.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.Moreover, the Applicant recently on 16 May 2024 filed an affirmation requesting to withdraw her application as she now wants to return to the Philippines but without any explanation as to what has happened to her claimed risk in her home country. 19.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 the absence of any good reason for her serious delay, I refuse to extend time and accordingly dismiss her leave application. Dated the 18th day of June 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
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