Case Document

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HCAL 486/2024

[2024] HKCFI 3380

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 486 OF 2024

BETWEEN
	Fernando Rhea Mae Bumatay alias Bumatay Rhea Mae alias Fernando Rhea Mae alias Fernando Rhea Mae B	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 7 April 2022 be refused; and

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

Observations for the Applicant:

1.The Applicant is a 34-year-old national of the Philippines who last arrived in Hong Kong on 8 January 2018 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract or within 14 days of its early termination, but when her last employment was prematurely terminated on 14 February 2021 and that she was arrested by police for theft for which she was subsequently convicted and sentenced to prison for 12 months, 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 creditor over her outstanding debts.

2.The Applicant was born and raised in Camiling, Tarlac, the Philippines. After leaving school she worked as a cashier in her home district until 2015 when she started to come to Hong Kong to work as a foreign domestic helper.

3.In late 2017 when she returned to her home in the Philippines for holiday, she borrowed a loan from a local money-lender to pay for her father’s medical expenses, and for which she was to remit money from Hong Kong to her family in the Philippines to repay her loan by monthly instalments with interest.

4.However, after her last employment was prematurely terminated in February 2021 and that she was subsequently convicted and sentenced to prison for theft, and when she was unable to remit any money to the Philippines to repay her loan that her creditor started to send men to her home in the Philippines to threaten to kill her, the Applicant therefore raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 10 May 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 23 July 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”).

6.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 and substantial risk of her being harmed or killed by her creditor and followers upon her return to the Philippines due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of her creditor to seriously harm or kill her other than to press her to repay her debts, that in any event it was a private monetary dispute between her and her creditor 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 109 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 her creditor to locate her.

7.On 9 August 2021 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which the Board did not hold any oral hearing and proceeded to deal with her appeal in her absence and on papers based on the material and information submitted by her in support of her claim and available before the Board in the hearing bundle. On 7 April 2022, 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 fear of harm from her creditor over her outstanding debts but found no reliable evidence of any real intention of her creditor to seriously harm or kill her other than to press her to repay her debts, and that in any event it was a private monetary 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 areas of the country away from her home district without any risk of being located by her creditor that her claim for non-refoulement protection failed on all applicable grounds.

9.On 18 March 2024 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) Procedural impropriety in failing to properly apply para 2 of the UN Committee Against Torture General Comment No. 2 whereby satisfaction of a national states obligations to conduct sufficient due diligence requires that reforms and means of relief introduced must be effective in any event the Board which focused on whether such reliefs showed merely signs of positive improvement;

(2) Procedural impropriety in failing to conduct sufficient inquiry into the relevant COI and to consider that the Applicant would face serious risk from her enemies who will harm her due to her political and statistical view which were considered serious matters for which her enemies would definitely harm her upon refoulement as the Board completely failed to materialize her fear in her claims;

(3) Procedural impropriety/irrationality in failing to give reasons for assessment of lack of BOR 2 risk and/or sufficient basis to support conclusion of lack of BOR 2 risk when the Applicant’s life is still in risk upon refoulement to her country for which she seeks protection for her life;

(4) Error/misdirection in law in failing to take into account the consideration of psychological strain and threats to the Applicant personally or threats to her directly to kill her as her enemies are still looking for her that the risk to her life still continues that she dares not to return to her country;

(5) Procedural impropriety in the Board’s failure to consider the Applicant’s fear of her enemies that she cannot return to her country in the circumstances that there is therefore genuine risk awaiting for her and that she cannot relocate to other places as her enemies could easily trace her wherever she hides in her country;

(6) Error/misdirection in law in the Board’s failure to assess the Applicant’s fear and her COI as to where in her country that she would not face a terrible risk upon her refoulement;

(7) That there was no sufficient basis for the Board to conclude that the Applicant and her family would not be at risk of being subjected to CIDTP upon refoulement or torture risk or BOR 2 risk or risk of persecution.

10.By then the Applicant was however 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 7 July 2022, the Applicant was therefore more than 1 year and 7 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.

12.In the Applicant’s case, a delay of more than 1 year and 7 months must be considered as extremely substantial and inordinate, for which she explained at the hearing of her application that she never received the decision in the mail, and that it was only much later when she reported on her recognizance that she was informed by her immigration officer of the decision, but by then she was already out of time with her leave application to apply for judicial review.

13.The record shows that the Board’s decision was on the same day of 7 April 2022 to her last reported address without being returned through undelivered post, and in the absence of any evidence to corroborate her bare assertions, I am not satisfied that the Applicant has provided a good or valid justification for her such serious delay.

14.As for the merits, if any, of her intended application, those grounds put forward by the Applicant are all just bare and vague assertions containing a few key words or phrases but without any necessary or relevant particulars or specifics or elaborations 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 unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy of the Applicant’s political view was to her case when on the factual basis of even her own case that it was a private monetary dispute between her and her creditor only without any official involvement or political element at all, while it is also clear on the basis of her case that the BOR 2 ground was simply not engaged at all either. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for her intended challenge.

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 correctly 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 3^rd day of December 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 3 December 2024 Fernando Rhea Mae Bumatay alias Bumatay Rhea Mae alias Fernando Rhea Mae alias Fernando Rhea Mae B 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 3 December 2024 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 18466/21/8/54/F1338 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 463/21 (formerly RBCZ 10430/21) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)