Case Document

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HCAL 349/2024

[2025] HKCFI 668

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 349 OF 2024

BETWEEN
	Torres Maricris Silos	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 / the Applicant being absent 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 2 November 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 31-year-old national of the Philippines who last arrived in Hong Kong on 15 November 2022 as a visitor with permission to remain as such up to 29 November 2022 when she did not depart and instead overstayed, and on 11 January 2023 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 her former boyfriend over their personal disputes. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born in Manila and raised in Sta. Teresita, Cagayan Valley, the Philippines. After leaving school she cohabited with her boyfriend Kyle whom she met in school in her home district, and in September 2019 she started coming to Hong Kong to work as a foreign domestic helper.

3.In early 2021 the Applicant discovered that Kyle was seeing other girls in the Philippines, but when she tried to break up with him on the phone, he refused and even made threats against her, and so the Applicant just cut off all further contact with him.

4.Thereafter the Applicant met an Indian man in Hong Kong and soon formed a relationship with him, and upon completing her last employment on 28 August 2022, she returned to the Philippines.

5.However, she soon discovered that she was pregnant, and after informing her Indian boyfriend, he asked her to return to Hong Kong to discuss their future, and so the Applicant returned to Hong Kong on 15 November 2022 to meet her Indian boyfriend, during which she was told by her mother in the Philippines that Kyle had discovered her relationship with the Indian man in Hong Kong and had come to her home in the Philippines looking for her, and threatened to kill her upon her return to the Philippines.

6.As a result the Applicant became fearful for her life and was afraid to return to the Philippines and therefore overstayed in Hong Kong, and subsequently raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 27 March 2023 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.By a Notice of Decision dated 27 April 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”).

8.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no reliable evidence of any real intention of her former boyfriend Kyle to seriously harm or kill her upon her return to the Philippines, 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 116 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 Kyle to locate her.

9.On 9 May 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 16 August 2023 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 2 November 2023 her appeal was dismissed by the Board which also confirmed the Director’s decision.

10.In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of her claim of fear of harm from her former boyfriend Kyle that caused her to leave her country to come to Hong Kong to seek protection, that there was no reliable evidence of any real intention of Kyle to seriously harm or kill her other than just angry words and empty threats, and 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 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 Kyle that her claim for non-refoulement protection failed on all applicable grounds.

11.On 20 February 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)   That the Adjudicator did not consider her claim properly and dismiss it without even taking time to consider the risk to her life;

(2)   That the Adjudicator was unreasonable not to allow her to submit her supporting documents without English translations, and also refused to give her time and opportunity to arrange for their translation;

(3)   That the interpreter was not helpful and was impatient with her evidence during the hearing.

12.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.

13.As the last day of the three-month period for her to file her Form 86 fell on 2 February 2024, the Applicant was therefore some 2 weeks 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.

14.In the Applicant’s case, a delay of 2 weeks may not be considered as substantial or significant, but for which she did not provide any explanation or reasons in her Form or affirmation, and as the record shows that the decision was sent on the same day of 2 November 2023 to her then reported address without being returned through undelivered post, I am unable to see any good or valid reason for her albeit insubstantial delay.

15.As for the merits, if any, of her intended application, those grounds put forward by the Applicant are all just some bare and vague assertions without any relevant or necessary 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 failed to consider her claim properly or at all, or what documents that she had wanted to submit without translation as it was never revealed in the record of her appeal hearing or even now in the present application, or in what way was the interpreter unhelpful or impatient during the hearing. 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.

16.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.

17.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 even 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.

18.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.

19.Moreover, the Applicant recently on 6 January 2025 filed an affirmation requesting to withdraw her application as she now wants to return to her home country but without providing any further details as to what has happened to her claimed risk or problem in her home country.

20.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 delay, I refuse to extend time and accordingly dismiss her application.

Dated the 25^th day of February 2025

(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 25 February 2025 Torres Maricris Silos 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 25 February 2025 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 21721 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 232/23 (formerly as RBCZ 5000198/23) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)