CALPITO WINNIE RAMOS v. TORTURE CLAIMS APPEAL BOARD

HCAL 814/2021

[2021] HKCFI 2522

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 814 of 2021

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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

1.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 11 February 2021 refused; and

2.  the application for leave to apply for Judicial Review dismissed.

Observations for the Applicant:

1. The Applicant is a 40-year-old national of the Philippines who last arrived in Hong Kong on 3 January 2019 with permission to work as a foreign domestic helper until the expiration of her employment contract on 19 October 2020 or within 2 weeks of its early termination, but when it was prematurely terminated on 20 November 2019, she did not depart and instead overstayed in Hong Kong until her arrest by the police on 11 March 2020. After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim on the basis that if she returned to the Philippines she would be harmed or killed by a local man for refusing his courtship. She was subsequently released on recognizance pending the determination of her claim.

2. The Applicant was born and raised in New Orlins, Lamsam, Cagayan, the Philippines. After leaving school she married her husband and raised a family of 3 children in her home district.

3.  In 2010 she separated with her husband, and in 2012 started to work in Hong Kong as a foreign domestic helper, returning to her home in the Philippines only during holidays.

4.  During one of her such holidays in her home district for 2 weeks in late December 2018, she met a man by the name of Jeff from another village who later wanted to form a relationship with her, but when she refused, he became furious and started to threaten and harass her.   

5.  Fearful for her safety, the Applicant left the Philippines on 3 January 2019  to return to Hong Kong to continue with her employment, during which she was informed by her father that Jeff had kept coming to her home looking for her, and when her last employment was prematurely terminated on 20 November 2019, she was afraid to return to the Philippines, and so she overstayed in Hong Kong, and upon her subsequent arrest by the police, she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 28 April 2020 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

6.  By a Notice of Decision dated 27 May 2020 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”).

7.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from Jeff upon her return to the Philippines as low due to the absence of or low intensity and frequency of past ill-treatment from him, that there is no reliable evidence of any real intention on his part to harm her over such a minor matter, that it was in any event a private affair between them 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 part of the Philippines away from her home district in large cities such as Manila where it would be difficult if not impossible for Jeff to locate her.

8.  On 10 June 2020 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 30 September 2020 before the Board during which she gave evidence and answered questions put to her by the Adjudicator for the Board. On 11 February 2021 her appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board accepted the Applicant’s claim of fear of harm from Jeff but found no reliable evidence of any real or serious intention of his to harm her over such a private affair, that in any event in the absence of any official involvement that state/police protection would be available to the Applicant upon her return to the Philippines as well as reasonable internal relocation for her to move safely to other area without any risk of being located by Jeff that her claim for non-refoulement protection failed on all applicable grounds.   

10.  On 2 June 2021 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, and in her supporting affidavit of the same date she just attached a copy of the decision without putting forth any proper ground for her intended challenge, nor did she request any oral hearing for her application.

11.  By then the Applicant was also out of time with her application, as Order 53 rule 4(1) of the High Court Ordinance, Cap 4 requires that an application for leave to apply for judicial review 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.

12.  As the last day of the three-month period for her to file her Form 86 fell on 11 May 2021, the Applicant was therefore more than 3 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.

13.  In the Applicant’s case, a delay of more than 3 weeks must be considered as substantial, for which she has not provided any explanation, and as the record shows that the Board’s decision was sent on the same day to her then reported address without being returned through undelivered post, I do not see any good reason for her substantial delay.     

14.  As for the merits, if any, of her intended application, as noted above the Applicant has also failed to put forth any proper ground for her intended challenge, 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 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 established by both the Director and the Board in their respective decision that the risk of harm in her claim 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 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 substantial delay, I refuse to extend time and accordingly dismiss her leave application.

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