Almuete Gregoria v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1900/2019

[2024] HKCFI 1887

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1900 of 2019

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 oral submissions by the Applicant 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 17 November 2017 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]. Her application was filed on 8 July 2019, which is late for more than one year and four 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.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.The applicant was arrested by police for overstaying on 10 July 2008. She had lodged torture claim and her application was rejected by the Director of Immigration Department (“the Director”). On 4 December 2015, she lodged her non-refoulement claim on all applicable other[2] than Torture risk. Her claim is based on her allegation that, if refouled, she would be harmed or even killed by the members of the New People’s Army (“NPA”), a political party in the Philippines, because she deserted this party.

5.According to the applicant, she and her husband belonged to NPA. She joined this political party in 1988. She was trained by the NPA. She witnessed the NPA members torturing people cruelly during this period of time. She was unable to bear it and she wanted to leave NPA. She knew that the NPA people would not allow her to leave. In 1989, she told her commander that she had to leave for Pangasinan for medical treatment. She left and never returned. Between 1989 and July 1994, she had to hide herself from the NPA members. She had lived with her sister, aunt and brother. She had worked in Dora for 5 years between 1989 to 1994. She returned to the Philippines after her employment in Dora. The NPA people were looking for her. She was advised to leave the Philippines for her own safety. Ultimately, she left the Philippines for Hong Kong on 10 July 1994. Her sister and aunt informed her that the NPA people are still looking for her.

The Director’s Decision

6.By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that: (i) the low intensity of past ill-treatment from the NPA members and her husband is indicative of a low future risk of harm upon her return to Indonesia [44]-[49]; (ii) state protection will be available to her upon her return [50]-[52]; (iii) internal relocation is viable [53].

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board. On 10 October 2017, the Board conducted an oral hearing. However, the applicant failed to attend the hearing despite notice having been given to her to explain her absence on the hearing day. The Board then proceeded to consider her case.

8.Having considered the applicant’s evidence, the Board made the findings below:

“25. On 10 October 2017, the Petitioner was given written notice of the NCPO’s intention to determine the petition in her absence, unless she provided a written explanation for her failure to attend the hearing, together with any documentary evidence in support of the explanation. This notice also was duly served on the Petitioner, having been seen by post to the last known address by the NCPO.

26. No explanation or reply of any sort was received from the Petitioner.

27. The NCPO has therefore decided to determine the petition in the absence of the Petitioner.

28. The NCPO is unable to determine the credibility of the Petitioner’s claim, in view of her failure to attend the Hearing.

29. In the absence of the Petitioner, no finding as to credibility or as to the facts can be made: the NCPO is unable to determine whether there are substantial grounds for believing that she will suffer the harm she claims to fear, or any harm, if she is refouled to the Philippines.

30. Her Petition is accordingly dismissed on all applicable grounds under the USM other than torture risk, and the Notice of Decision of the Immigration Officer dated 15 July 2016 and the Notice of Further Decision dated 3 July 2017 are confirmed.”

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

9.The applicant has filed Form 86 dated 8 July 2019 for leave to apply for judicial review of the Board’s Decision.

10.The applicant filed an affidavit, in which she said that she rejected the Board’s Decision because it disregarded her dangerous situation. She enclosed a copy of the Board’s Decision with her affidavit. She has raised no other specific ground to challenge the Board’s Decision.

DISCUSSION

11.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.

12.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).

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

14.The question before this Court is whether the Board’s Decision, which confirmed the Director’s decision on all the applicable risks contravenes any of the applicable legal principles, viz. legality, procedural fairness or Wednesbury reasonableness.

15.Section 15A of Schedule 1A of the Ordinance provides that the Board may hear the appeal in the absence of the applicant. The determination of the appeal is therefore legal.

16.Since the Board had given the statutory notice to the applicant to explain her absence in writing and the applicant had failed to respond to the request, the applicant has no reason to complain unfairness in the procedure.

17.The Board had considered the applicant’s evidence and the record of her screening interview with the immigration officer. See paragraphs 1, 16 -22 of the Board’s Decision. The adjudicator stated that he was unable to determine whether there are substantial grounds for believing that she will suffer the harm she claims to fear, or any harm, if she is refouled to the Philippines. This goes further than the Director’s finding that the risk of the applicant being harmed if she returns to the Philippines is low. If the Board is unable to make this finding, it may rely on the Director’s finding, i.e. her risk of harm is low.

18.In fact, as I understand it, the Board’s finding is tantamount to saying that it does not believe that she will suffer the harm as claimed if she is refouled to the Philippines because the applicant has the burden to prove her case.

19.The Board might consider the same evidence before the immigration officer under section 18 of Schedule 1A of the Ordinance[3]. Furthermore, the Board might consider the materials provided to the Director and in the Director’s decisions as the Court of Appeal in Re Sri-Wahyuningsih [2023] HKCA 905, Hon Chu VP and Cheung JA, 31 July 2023, held:

“18. … The Board ought to and could have made an assessment of the merits of the applicant’s claim and her daughters’ claim separately having regard to, amongst other things, the materials provided to the Director and in the Director’s decision, regardless of the applicant’s absence. …”

20.The Director rejected the applicant’s claim for the reasons that the alleged risks are low and the risks are alleviated by state protection and internal relocation. Since the applicant was absent before the Board without any reasonable explanation, the Board was entitled to adopt the Director’s decisions as this was the evidence before it.

21.Up to date, the applicant has not given any reasons for her absence before the Board. Nor has she raised any valid reason to challenge the Director’s decisions, which the Board adopted. In the circumstances, there is nothing to show that the Board’s Decision is Wednesbury unreasonable.

22.The applicant therefore fails to show that she has any realistic prospect of success in her proposed 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.

24.The Court has just received a letter dated 17 July 2024 from the Immigration Department that the applicant passed away on 22 October 2022. In the circumstances, the application must be dismissed as it serves no purpose.

Dated the 13^th day of August 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