VALDEZ LIBRADA AMPARO AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD

HCAL 1778/2019

[2025] HKCFI 988

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1778 OF 2019

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 1st Applicant 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 19 February 2019 be refused; and

2.  The 1^st and 2^nd Applicants’ application for leave to apply for judicial review be dismissed.

Observations for the Applicants:

1.  The 1^st Applicant (“A1”) is a 47-year-old national of the Philippines who first arrived in Hong Kong in 2009 with permission to work as a foreign domestic helper until the expiration of her employment contract or within 14 days of its early termination, but upon the expiration of her last employment contract on 20 March 2014 she did not depart and instead overstayed, and after giving birth to her son, the 2^nd Applicant (“A2”) on 3 April 2014 in Hong Kong with another man who was not her husband, she raised a non-refoulement claim for protection to the Immigration Department for herself and her son on the basis that if they returned to the Philippines they would be harmed or killed by A1’s husband in the Philippines for having an affair with another man in Hong Kong that resulted in her given birth to A2.  They were subsequently released on recognizance pending the determination of their claims.

2.  A1 was born and raised in Bohol, the Philippines.  After leaving school she worked as a saleslady, married her husband and raised a family with 2 children in her home district.

3.  Soon A1 discovered that her husband was an alcoholic, and that whenever he was drunk he would abuse and beat her that caused her both physical injuries and emotional stress, and to avoid such abuses, A1 in 2009 made arrangements to leave her husband by coming to Hong Kong to work as a foreign domestic helper.

4.  While working in Hong Kong A1 met and formed a relationship with a Nigerian man who was then a non-refoulement claimant, and on 3 April 2014 she gave birth to their child, A2 in Hong Kong, and when she later found out that her husband had been trying to call her on the phone after being told by a mutual friend of her giving birth to A2, she feared that her husband would harm or kill her and A2 upon their return to the Philippines and therefore raised a non-refoulement claim for protection for herself and A2, for which she completed a Non-refoulement Claim Form (“NCF”) jointly for both of them on 16 November 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). 

5.  By a Notice of Decision dated 6 December 2017 the Director of Immigration (“Director”) rejected the claims of both Applicants on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“Torture Risk”), risk of their 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 claims of the Applicants and assessed the level of risk of harm from A1’s husband upon their 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 evidence of any real intention of A1’s husband to seriously harm or kill either of them other than A1’s own suspicion or speculation, that in any event it was a private domestic dispute between A1 and her husband only without any official involvement that state or police protection would be available to the Applicants if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that supports, assistances and protection for single mothers and illegitimate children in the Philippines would be available from various government departments and NGOs to both Applicants as well as reasonable internal relocation alternatives within the Philippines with a large population of 104 million people spread across a vast territory of more than 300,000 square kilometers that it would not be unduly harsh for A1 as an able-bodied adult with working experience to move safely with A2 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 A1’s husband to locate them.

7.  On 18 December 2017 the Applicants lodged their appeals to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which they attended an oral hearing on 28 November 2018 before the Board during which A1 gave evidence for both of them and answered questions raised of their claims by the Adjudicator for the Board.  On 19 February 2019 their appeals were dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision the Board accepted A1’s claim of fear of harm from her husband over her affair with another man in Hong Kong that led to the birth of A2 but found no evidence to suggest any threats from him given the lack of any direct contact between the 2 of them as she refused to take his telephone calls other than her own suspicions and speculations, and that in any event it was a private marital dispute between A1 and her husband only without any official involvement that state or police protection would be available to the Applicants upon their return to the Philippines where there are laws to protect single mothers and illegitimate children and with supports and assistances from various government departments and NGOs, while A2 who is legally regarded as a Filippo citizen will also be entitled to all the rights including residency and education in the Philippines, and that there are also reasonable internal relocation alternatives available for both of them to move safely to other parts of the country away from A1’s home district without any risk of being located by her husband that their claims for non-refoulement protection failed on all applicable grounds. 

9.  On 26 June 2019 the Applicants filed their Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in their Form or supporting affirmation of the same date in which A1 just asserted that the decision had disregarded their dangerous situation but without providing any details or particulars or elaboration as to how it did so, nor was she able to do so at the hearing of their application.  

10.  By then the Applicants were also out of time with their 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 them to file their Form 86 fell on 19 May 2019, the Applicants were therefore more than 5 weeks late with their 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 Applicants’ case, a delay of more than 5 weeks must be considered as substantial and inordinate, for which A1 was unable to give any explanation as it was some years ago, but conceded that it was likely due to the fact that she was then busy taking care of A2 who was then an infant, of which of course cannot be accepted as any valid reason or justification for not complying with the procedural requirements, and as such I am not satisfied that the Applicants have provided any good reason for their substantial delay. 

13.  As for the merits, if any, of their intended application, as noted above the Applicants have also failed to put forward any proper ground for their intended challenge, nor was A1 able to do so at the hearing of their application.  As such, and in the absence of any error of law or irrationality or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any merits in their intended application either.

14.  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.

15.  In the Applicants’ 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 their claim even if real is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of the Philippines, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526. 

16.  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 Applicants’ claim.

17.  I am of course mindful of the fact that A2 being a minor at the present age of 10 years old is not legally represented in these proceedings as required by Order 80 rule 2 of the Rules of the High Court, or for that matter nor was he in his appeal before the Board, and hence it would be necessary for the Court to scrutinize and examine whether his claim had been properly and separately considered and determined by the Board ibn a manner sufficient to meet the high standards of fairness in proceedings of this nature, and to see whether there are matters that may support potential minor-specific non-refoulement bases which might not have been properly advanced to the Board due to lack of legal representation in his appeal before the Board, as has been held to be the proper approach by the Court of Appeal in Fabio Arlyn Timogan [2020] HKCA 971 and in Re Jasvir Singh [2021] HKCA 53, in that claims of minor children even if based on the same set of primary facts are separate from the claims of their parents and are required to be considered as such having regard to their specific or personal circumstances, and that ill-treatments which may not reach the level of persecution in the case of an adult may do so in the case of a child.

18.  In the present case, and as noted above, A2’s claim was premised fundamentally on his mother A1’s claim, but that the Board rejected her claim upon finding no evidence of any risk of harm from her husband and which even if real would be negated by the availability of both state protection and internal relocation to both Applicants upon their return to the Philippines, and it is also clear that the Board was keenly aware of the need to assess any risk of harm that A2 may face as a child born out of wedlock if he has to go to and live in the Philippines with his mother by acknowledging that there are COI indicating supports and assistances from various government departments and NGOs to single mothers and illegitimate children available to both of them in the Philippines, that there are no evidence of any serious social stigma or discrimination to A2 as an illegitimate child born to a Nigerian father in the Philippines, and that while a physical separation between the 2 of them may not be a desirable outcome but that it is not accepted that it will lead to any serious harm to A2 of the kind that enlivens Hong Kong’s obligations in relation to non-refoulement protection (see [78] – [81] of Decision), all of which are in my view findings and conclusion that the Board was entitled to reach based on the evidence and COI available to it, and I see no basis to disturb the Board’s reasoning in this regard.

19.  For these reasons I am of the view that the Board had properly assessed the Applicants’ claims based on the evidence and the available COI before it, and had duly given reasons for rejecting their claims, and as there are no non-refoulement grounds relating specifically to A2 that had not been advanced to or considered by the Board due to his lack of legal representation, there is therefore no merits in A2’s intended judicial review that I shall accordingly treat the non-compliance with Order 80 rule 2 of the Rules of the High Court due to his lack of legal representation as a mere irregularity: see Zoraydah v Torture Claims Appeal Board [2020] HKCA 442.  

20.  In the premises, as I am not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review, and in the absence of any good reason for their serious delay, I refuse to extend time and accordingly dismiss their 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