|
HCAL610/2018
[2019] HKCFI 1900
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 610 of 2018
BETWEEN
|
Manganaan Sixta Zamudio |
Applicant |
| |
and |
|
| |
Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
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:
Order by Deputy High Court Judge Josiah Lam:
(1) Extension of time for application for leave to apply for judicial review of the decision of Torture Claims Appeal Board dated 29 June 2017 be refused; and
(2) Application for leave to apply for judicial review be dismissed.
It is further directed that:
(1) If the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, she must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;
(2) When filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;
(3) The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;
(4) If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions;
(5) Liberty to apply.
Observations for the Applicant
Background
1. The Applicant is a national of the Philippines. She is now aged 53 (DOB: 28 March 1966).
2. The Applicant claimed she would be harmed or killed by her ex-boyfriend Lemuel Fernandez Ramirez (“Ramirez”).
3. The Applicant came to know Ramirez in 2008 in Hong Kong. They fell in love in 2009.
4. Ramirez came from a rich family in the Philippines. His family was influential and had association with a political party. Nevertheless, Ramirez came to work in Hong Kong in 2009 as driver. He was a heavy gambler and drinker. The Applicant had to give him financial assistance.
5. In mid-2011, Ramirez returned to the Philippines. Later that year, the Applicant also returned there to have a house built for future living with Ramirez. Then she returned to Hong Kong.
6. In July 2015, the Applicant’s father found out Ramirez had been cohabiting with another woman in the house. The father informed the Applicant, who was in Hong Kong. On the phone, the Applicant asked Ramirez to move out. Ramirez refused.
7. The Applicant and Ramirez quarrelled constantly on the phone. In August 2015, the Applicant told Ramirez that she wanted to break up with him. Ramirez did not agree. He said he would kill the Applicant. He also threatened the Applicant’s parents in the Philippines that he would kill the Applicant if she came back.
8. The Applicant had worked as domestic helper in Hong Kong since 2008. Over the years, she had gone back to the Philippines at times. She last entered Hong Kong on 10 August 2014. On 12 August 2015, she applied to the Immigration Department for a change of employer. It was then found out her employment contract had actually been prematurely terminated in late 2013.
9. The Applicant was charged with offences including overstaying and making false representation to an Immigration Officer. She was sentenced to a total of 10 months’ imprisonment.
10. The Applicant raised a non-refoulement claim on 25 September 2015. She said she was so afraid that she did not dare return to the Philippines.
11. The Applicant never reported Ramirez to the Philippines police because Ramirez’ family was rich and influential. She thought they would bribe the police to get Ramirez out of trouble.
12. The Applicant thought internal relocation was not viable because Ramirez could easily find her anywhere in the Philippines.
13. In the ensuing two-tier screening process, the Director of Immigration (“the Director”) and the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”) respectively refused the Applicant’s claim with respect to all the four applicable grounds: (i) risk of torture,[1] (ii) risk of persecution,[2] (iii) risk of torture or cruel, inhuman or degrading treatment or punishment (BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4].
14. On 11 April 2018, the Applicant applied for leave for judicial review.
Timeline
15. Things happened in this order: –
| 2014-8-10 |
The Applicant last entered Hong Kong. She had worked here as domestic helper since 2008. Her last employment contract was prematurely terminated in December 2013. She did not inform the Immigration Department then. She had gone back to the Philippines and returned to Hong Kong on 10 August 2014 (last entry). |
| 2015-8-12 |
The Applicant applied to the Immigration Department for a change of employer. It was found out her employment contract was already terminated in December 2013. She was subsequently arrested for overstaying and other offences. |
| 2015-9-25 |
The Applicant raised a non-refoulement claim. |
| 2016-7-12 |
The Director refused the Applicant’s claim with respect to these three applicable grounds: torture risk, persecution risk and BOR3 risk. [‘the Director's decision”] |
| 2017-5-24 |
The Director refused the Applicant’s claim with respect to the fourth applicable ground: BOR2 risk. [‘the Director's further decision”] |
| 2017-6-29 |
The Board refused the Applicant's claim with respect to all the four applicable grounds. [“the Board’s decision”] |
| 2018-4-11 |
The Applicant applied for leave for judicial review. |
Respondent/Interested party
16. The Unified Screening Mechanism is a two-tier process. The Director screens an applicant’s non-refoulement claim first; the applicant may appeal to the Board which deals with his/her case on a rehearing basis.
17. In Re Moshsin Ali, the Court of Appeal states that “the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”[5]
18. In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Board as respondent and the Director as interested party. The Board is the putative respondent; the Director is the putative interested party.
The Director's decision
19. In his decision dated 12 July 2016, the Director did not accept the Applicant faced any torture risk, persecution risk or BOR3 risk. He also considered reasonable state protection and internal relocation were available to the Applicant in any event. The Director refused the Applicant's claim with respect to those three applicable grounds.
20. In his further decision dated 24 May 2017, the Director did not accept the Applicant faced any BOR2 risk. He refused the Applicant's claim with respect to the last applicable ground.
The Board's decision
21. The Applicant appealed to the Board. The Adjudicator interviewed her on 8 May 2017. The Applicant chose to remain silent.
22. The Adjudicator noted the Applicant had her employment contract terminated in late 2013. She last entered Hong Kong on 10 August 2014. She did not apply for non-refoulement protection as soon as possible. The Adjudicator made no finding on the Applicant’s credibility because the Applicant had chosen to remain silent.
23. Even on the Applicant’s account of events, the Adjudicator found the Applicant had not suffered ill-treatment to the minimum level of severity. There was no evidence of state instigation or acquiescence. The alleged threats involved no officials. The complained situation was only a family problem. It was not on account of any Convention reasons: race, religion, nationality, membership of a particular social group or political opinion.
24. The Adjudicator accepted the Director's findings on reasonable state protection and internal relocation. He agreed that both were available to the Applicant in any event.
25. The Adjudicator did not accept the Applicant faced any risk that warranted non-refoulement protection. On 29 June 2017, he refused the Applicant's claim with respect to all the four applicable grounds: torture risk, persecution risk, BOR2 risk and BOR3 risk.
Grounds of judicial review
26. The Applicant complained the Adjudicator unlawfully fettered his discretion; acted in a procedurally unfair manner; rendered unreasonable or irrational decisions; failed to meet the greater care and duty owed to a self-represented claimant.
27. The Applicant complained she was given the appeal bundle only a few days before the Board hearing. As such, she did not have sufficient time to prepare for the appeal due to language problem and lack of legal representation. The Applicant said she was confused of what happened. She complained the Adjudicator failed to make appropriate arrangement.
28. The Applicant also complained the Adjudicator relied on outdated cases, information not officially recognised or simply hearsay.
Court hearing
29. The hearing took place on 20 September 2018. The Applicant was in person. A Tagalog interpreter provided service in court.
30. The Applicant was late in applying for leave for judicial review. She said she did not receive the Board's decision dated 29 June 2017 at her address. She claimed she had been living at the same address (Room A, 5/F, David mansion, No 93 Woosung Street, Jordan, Kowloon) since 2016. The Applicant said she only got a notice from the Post Office sometime in 2017 (she could not be more specific about the date). She went to the Post Office and got the Board's decision. She could read English. She understood the Board had refused her appeal. The Applicant said she did not know she could apply for judicial review then. She waited for a few months to speak to friends. Then she went to a lawyer for advice and took out the current application on 11 April 2018. The lawyer prepared the documents for her. All the grounds of her application were there. The Applicant said she did not want to go home.
31. The Applicant confirmed she had submitted all of her case to the Director and the Adjudicator for their consideration of her non-refoulement claim.
Discussion
32. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
33. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[6] Nevertheless, it is said in Re Islam Rafiqul: –
“The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision-makers are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.” [7]
Late application for leave for judicial review
34. Order 53 rule 3(1) of the Rules of the High Court reads: –
(1) No application for judicial review shall be made unless the leave of the Court has been obtained in accordance with this rule.
35. Order 53 rule 4(1) and (2) of the Rules of the High Court read: –
(1) An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.
(2) Where the relief sought is an order of certiorari in respect of any judgment, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgment, order, conviction or proceeding.
36. It is clear from these provisions that no application can be made after the three-month period unless the Court considers that there is good reason for extending time. The Applicant must provide good reason for the Court to give an extension of time. It is a pre-requisite in late application for leave for judicial review.[8] If the court is not satisfied that there is good reason for extending time, then no application for judicial review can be made in accordance with rule 4(1). In that event, the Court should not proceed to consider if leave should be granted or refused on other grounds.[9]
37. In the present case, the Board’s decision was issued on 29 June 2017. The Applicant only applied for leave for judicial review nine odd months later on 11 April 2018. Excluding the 3-month grace period for filing, she was late for more than 6 months.
38. The Board's decision was duly sent to the Applicant’s reported address in late June 2017. The Applicant said she had to go to the Post Office to get the document. She could not be specific about the date or even the month when she got the Board's decision. In any event, she said it was still in 2017. The Applicant could read English. She understood the Board had refused her appeal. She waited for a few months to speak to friends and then went to a lawyer. Her lawyer took out the current application on 11 April 2018. The application was more than 6 months late by then.
39. I do not find the Applicant had given any good reason for her delay, which was undue and substantial. The prejudice that would be caused to the putative respondent would not be insignificant. The Applicant's application for leave for judicial review involved no issue of general importance and her argument had no merits at all.
40. The Applicant complained about lack of legal representation.
41. The Applicant had been represented by the Duty Lawyer Service up to the Director's decision dated 12 July 2016.
42. The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings.[10] The Applicant failed to show her case was undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.
43. The Applicant raised her language problem.
44. It is trite the high standards of fairness do not demand interpretation service being made available all the time to a non-refoulement claimant.[11]
45. In the current application, a lawyer helped the Applicant to prepare Form 86 and the affirmation in English. The Applicant could always enlist help from someone (friends or lawyers) to assist her with interpretation/translation and dealing with English documents at all material times. In any event, the Applicant was assisted by a qualified interpreter when she was before the Adjudicator. The Applicant had much exaggerated her language problem.
46. The Applicant complained she received the appeal bundle only a few days before the Board hearing.
47. According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’[12] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[13], the Director shall send copies of the hearing bundle to the Board and to the Applicant no later than 5 working days prior to the date of the hearing.
48. The Applicant said the appeal bundle was served on her on or about 1 May 2017. That was 7 days prior to the Board hearing scheduled for 8 May 2017. 1 May and 3 May of 2017 were public holidays; 7 May was a Sunday. Assuming what the Applicant said was true, she got the appeal bundle 7 days prior to the Board hearing. There were only 4 working days in that period.
49. However, the appeal bundle would consist mostly of documents that had been seen or submitted by the Applicant during the first-tier screening of her claim. The Applicant's case was not difficult. There was no evidence to show the bundle was difficult or voluminous.
50. A few days certainly were not a long period but could still be sufficient for reasonable and diligent preparation on the part of the Applicant. The Applicant failed to show she really needed more time to prepare for her appeal. She had not complained to the Adjudicator or asked for adjournment during the appeal hearing. In fact, the Applicant chose not to answer the Adjudicator’s questions.[14] She failed to prove there was a forced lack of preparation due to shortage of time.
51. The Applicant said she was confused but she still answered all the questions honestly in the Board hearing. She did not. She chose not to answer the Adjudicator’s questions.
52. There was no evidence the Adjudicator had relied on outdated cases, information not officially recognised or simply hearsay.
53. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding, conclusion and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate her case. The Adjudicator was acquainted with the facts. He considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.
Conclusion
54. The Applicant's application for leave for judicial review is late. She fails to show any good reason to justify the delay. There are no circumstances that oblige the court to consider her late application. I therefore dismiss her application for leave for judicial review.
Dated the 30th day of July 2019
|
(Henry Ng)
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 30/7/2019
Manganaan Sixta Zamudio
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 30/7/2019
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 4207/16/7/177/F237
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 135/16 & RBCZ 9001626/17 (formerly RBCZ 13462/15)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
|
[1] As defined in Part VIIC of the Immigration Ordinance, Cap 115, which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
[2] By reference to the non-refoulement principle under Articles 33 and 1A(2) of the 1951 Convention relating to the Status of Refugees.
[3] Under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] Under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[5] CACV 54/2018, para 45.
[6] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[7] CACV 219/2018 [2018] HKCA 570, para 14(1).
[8] CACV 110/2016 Kwok Cheuk Kin, para 17.
[9] Ibid., para 19.
[10] CACV 284/2017 Re Paswan Shibu Lal, para 21.
[11] See Re Zaman Muhammad [2018] HKCA 486 at [13]; Re Gurnishan Singh [2018] HKCA 704 at [13].
[12] The ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’ was issued by the Chairperson of the Board pursuant to section 16 of Schedule 1A to the Immigration Ordinance, Cap. 115 of the Laws of Hong Kong.
[13] The ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’ was issued by the Chairperson of the Board, who had been in her capacity delegated by the Chief Executive with the authority under Article 48(13) of the Basic Law of the Hong Kong Special Administrative Region to determine the practice and procedure of the Administrative Non-refoulement Claims Petition Scheme.
[14] The Board's decision, para 4.
|