Case Document

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HCAL 626/2024

[2024] HKCFI 2025

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 626 OF 2024

BETWEEN
	Analyn Alenio Amo	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 22 December 2023 be refused; and

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

Observations for the Applicant:

1.The Applicant is a 39-year-old national of the Philippines who last arrived in Hong Kong on 14 August 2020 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 14 August 2022 or within 14 days of its early termination, but when her last employment was prematurely terminated on 20 October 2022, she did not depart and instead overstayed, and was arrested by police some 6 months later on 4 May 2023, and for which she was subsequently convicted and sentenced to prison for 15 months, during which she raised a non-refoulement claim for protection to the Immigration Department on the basis that if she returned to the Philippines she would be harmed or killed by her former boyfriend for leaving him and putting an end to their relationship.

2.The Applicant was born and raised in Balagtas, Bulacan, the Philippines. After leaving school she met and cohabitated with her boyfriend and raised a family with 3 children in her home district.

3.In 2009 in order to help supporting their family, the Applicant went to work in Kuwait as a domestic servant, but in February 2011 when she returned to the Philippines for holiday, she discovered that her boyfriend became a drug addict and had had an affair with another woman, and when the Applicant wanted to leave him and end their relationship, her boyfriend became furious and threatened to kill her if she dared to leave him.

4.After she was unable to get any help from the police or the village council of her home district, the Applicant decided to leave the country by applying to work in Hong Kong as a foreign domestic helper, which she eventually did April 2018 when she departed the Philippines for Hong Kong to start her first employment, but when her last employment contract was prematurely terminated 20 October 2022, she was afraid to return to the Philippines 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 August 2023 and attended screening interview before the Immigration Department with legal representation.

5.By a Notice of Decision dated 7 September 2023 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”).

6.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no evidence to suggest that she will face a real and foreseeable risk of 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 and with whom she has no further contact since 2018, that there is no evidence of any real intention of him to seriously harm or kill her, that in any event it was a private relationship dispute between the 2 of them only 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 117 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 Quezon or Caloocan where it would be difficult if not impossible for her former boyfriend to locate her.

7.On 18 September 2023 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 18 December 2023 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 22 December 2023 her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board accepted the Applicant’s claim of disputes with her former boyfriend that caused her fear of being harmed by him upon her return to the Philippines but found no reliable evidence of any real intention of him to seriously harm or kill her other than some angry words uttered during their quarrels, and that in any event it was a private personal dispute between the 2 of them only 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 alternatives for her to move safely to other parts of the country away from her home district without any risk of being located by her former boyfriend that her claim for non-refoulement protection failed on all applicable grounds.

9.On 19 April 2024 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 other than a regurgitation of her claim as before of fear of harm from her former boyfriend but without putting forward any proper ground for her intended challenge, nor was she able to do so at the hearing of her application.

10.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.

11.As the last day of the three-month period for her to file her Form 86 fell on 22 March 2024, the Applicant was therefore almost one month 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.

12.In the Applicant’s case, a delay of almost one month must be considered as substantial and inordinate, for which she explained at the hearing of her application that she was then in prison in Lo Wu Correctional Institution in May 2023, and that upon her discharge from prison in March 2024 she was transferred to her present detention by the Immigration Department at Nei Kwu Correctional Institution, and it was only then that she was able to get assistance from the stationed welfare officer to help her to make her present application.

13.The record shows that the Board’s decision was sent on the same day of 22 December 2023 to her then detention at Lo Wu Correctional Institution without being returned through undelivered post, and with stationed welfare officers available while in prison or detention to assist her with her application, I am not satisfied that the Applicant has any good or valid justification 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 forward any proper those grounds for her intended challenge either in her Form 86 or affirmation or at the hearing of her 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 or 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.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.

18.For all 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 serious delay, I refuse to extend time and accordingly dismiss her leave application.

Dated the 8^th day of August 2024

(Chung Lai Fan, Christine)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 8 August 2024 Analyn Alenio Amo Applicant’s ref. no.: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 8 August 2024 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 22211 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 760/23 (Formerly RBCZ 5000729/23) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)