JAVILLONAR JULIETA MERCADO v. TORTURE CLAIMS APPEAL BOARD

HCAL 2675/2019

[2025] HKCFI 2557

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2675 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 Applicant in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 46-year-old national of the Philippines who last arrived in Hong Kong on 5 April 2015 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 5 April 2017 or within 14 days of its early termination, but when her employment was prematurely terminated on 14 September 2015, she did not depart and instead overstayed, and on 11 November 2015 she surrendered to the Immigration Department and raised a non-refoulement claim for protection, for which she was required to return a completed Non-refoulement Claim Form (“NCF”) within 28 days on or before 28 February 2018, and that she was also given legal representation from the Duty Lawyer Service (“DLS”).

2.  However, despite a written reminder from the Immigration Department, the Applicant failed to return her NCF as stipulated, and on 28 February 2018 her lawyer from DLS also confirmed to have received no further instruction from the Applicant. Accordingly by a letter dated 1 March 2018 the Director informed the Applicant that her claim was treated as withdrawn due to her failure to return her NCF as stipulated and in pursuance of Section 37ZG (1) of the Immigration Ordinance, Cap 115.

3.  On 7 May 2018, the Applicant in writing to the Immigration Department requested to re-open her claim, but upon subsequent inquiries made by the Immigration Department the Director by a Notice of Decision dated 15 June 2018 refused to allow the Applicant to re-open her claim upon her failure to satisfy an immigration officer that due to circumstances beyond her control that she had not been able to return a completed NCF as required within the stipulated time or at all under Section 37ZG (3) of the Immigration Ordinance.

4.  On 27 June 2018, 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 21 May 2019 before the Board during which she gave evidence and answered questions raised of her failure to return her NCF as stipulated. On 27 June 2019, her appeal was dismissed by the Board which also confirmed the Director’s decision.

5.  In its decision the Board found that the Applicant had all along been fully aware of the requirement for her to complete and return her NCF to the Immigration Department within the stipulated time, but that she had failed to provide any valid reason for her failure to do so, or for that matter why she had also failed to give any instructions to her lawyer from DLS for the preparation of her NCF or to submit it to the Immigration Department as required, and accordingly the Board concluded that it was not satisfied that the Applicant had provided any good or valid reason why her non-refoulement claim should be allowed to be re-opened.

6.  On 13 September 2019, the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for her intended challenge:

(1)  That the Board reached the decision wrongly in assessing her non-refoulement claim as the decision was not fair or reasonable as required by the Wednesbury test in failing to recognize that her life must be protected by the criminal law from extra-judicial killings that she may face if deported back to her home country;

(2)  That the Board failed to appreciate or place proper or sufficient weight or importance to the presence of State Acquiescence in her case which led to an unfair outcome of rejecting her claim;

(3)  That the Adjudicator acted unreasonable and was procedurally unfair by placing too much reliance on COI but failed to take into account the Applicant’s personal background and experience in assessing her claim;

(4)  That the Board had listed relevant COI which supported the Applicant’s aversions that the police in his country would not be able to protect but failed to consider or give sufficient weight to such evidence and instead ruled otherwise against the Applicant’s case which was a clear case of unfair attitude shown by the Board which in itself is enough to render its decision void;

(5)  That the Board failed to attain the high standard of fairness required by the Wednesbury test in failing to take into account the Applicant’s argument that corruption and incompetency of the administration in the Applicant’s country is still a very serious problem as various human rights organizations had compiled reports that stated testament to the Applicant’s assertions;

(6)  That the Adjudicator was procedurally improper and unfair when assessing whether or not to accept the Applicant’s explanations and unreasonably required her to respond to questions that she was not in a position to offer any response;

(7)  That the Adjudicator made a ruling to dismiss the Applicant’s appeal based on findings which the Adjudicator ought to allow and thus the decision was irrational.

7.  These are however all just bare and vague assertions of the Applicant and are wholly irrelevant to her case given the fact that she had never even made out her case for non-refoulement protection due to her failure to submit her NCF at all, and accordingly none of these proposed grounds are applicable to her case. 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.

8.  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 request to re-open her claim.

9.  Moreover, the Applicant had subsequently since been allowed by the Director to make a subsequent claim for non-refoulement protection, and of which she also confirmed at the hearing of her application.

10.  In the premises, as I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, nor will it serve any useful purpose in view of the fact that she had since been allowed by the Director to make a subsequent claim, I 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