GALANG JENNYLYN ESTRADA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1269/2024

[2025] HKCFI 78

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1269 OF 2024

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J U D G M E N T

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 8 September 2022 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). Her application is late. Time expired for her to file her application on 8 December 2022. Her application filed on 2 August 2024 is late for more than one year and 3 months. This issue will be dealt with below.

2.  The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with her application on paper.

The applicant

3.  The applicant, aged 43 is a national of the Philippines. She entered Hong Kong as a domestic helper on 1 September 2017. Her employment contract was prematurely terminated. She did not depart and over-stayed since 22 June 2019. She was arrested by police and was referred to the Immigration Department on 22 February 2021. She lodged non-refouement claim by a written signification. A removal order was issued against her on 23 March 2021.

4.  According to the applicant, she borrowed a loan from ASKI, the creditor, for the medical expense of her father in 2016. In 2017, she came to Hong Kong to work as a domestic helper. She remitted money to her husband to pay her creditor. However, her husband did not pay the creditor, who came to her house in the Philippines to demand repayment. He threatened her husband that if she returned to the Philippines, he would kill her. ASKI had also called her by phone every day. She changed her phone number and cut off contact with him. Her husband and their children are living in the Philippines and ASKI did not harm them. Details of her story are set out in paragraph 6 of the Director’s Notice of Decision dated 18 November 2021 (“the Director’s Decision”).

The Director’s Decision

5.  The Director considered the applicant’s claim in relation to the following risks:

(a)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(b)  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

(d)  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

6.  By way of the Director’s Decision, the Director dismissed the applicant’s claim as he found that: (i) there was no evidence that there is any real risk that ASKI will seriously harm or kill her upon her return to the Philippines [13] and she will be able to avoid such risk by internal relocation [13]; (ii) state protection will be available [15]-[18]; and internal relocation will be viable [19]-[20].

The Board’s Decision

7.  The applicant appealed the Director’s Decision to the Board. The Board fixed a hearing to take place on 14 April 2022. The applicant was absent. Due notice was given to her for her to explain her absence and the hearing was re-fixed to take place on 18 May 2022. On the date of hearing, the applicant attended the Board’s registry and said that she did not receive the notice of hearing. She did not attend the hearing. The Board suspected that the applicant had received the Board’s notice of hearing and she therefore went to the Board on the date of hearing. The Board proceeded to consider her application on the papers.

8.  The adjudicator had taken on board the authority of Re: Masud MD [2021] HKCA 1449 and Re: Pradeep Kumar [2022] HKCA 608, Hon G Lam and Chow JJA, 4 May 2022 and other relevant authorities. See paragraph 37 of the Board’s Decision. The Board found, among other things:

“39. … I am not able to make findings in favour of the Appellant regarding the credibility of her claims to fear harm for reason of her loan from Mr A and therefore I do not accept her case as plausible. Particularly as her own evidence is she seems to have had no reason to pay any placement fee in 2016 and in any event, she appears to have almost fully repaid the loan. Moreover, she has not been forthcoming with her activities in Hong Kong for around 2 years prior to her arrest.

40. … I am not able to make findings in favour of the Appellant whether the Appellant faces a real risk of harm from Mr A, as the Appellant may be able to access state protection and/or it may be reasonable for the Appellant to access internal relocation.

41. … Consequently, I consider there is only a remote or speculative risk and therefore not a real risk the Appellant will face Proscribed Harm under any Applicable Ground from Mr A, if the Appellant is refouled to the Risk State.”

9.  For the above reasons, the Board dismissed the applicant’s appeal and confirmed the Director’s decision.

Application for leave to apply for judicial review of the Board’s Decision

10.  The applicant has filed Form 86 dated 2 August 2024 for leave to apply for judicial review of the Board’s Decision.

11.  The applicant did not raise any specific ground to challenge the Board’s Decision. Nor did she explain her late application.

DISCUSSION

12.  As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of the applicant’s case.

13.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

15.  The first consideration is that the Board was entitled to proceed to hear the appeal after due notice had been given to the applicant under the Ordinance. This case can be differentiated from the case of Re Mausad MD as this is a case where the applicant was absent whereas Re Mausad MD was a case where the applicant refused to give evidence, therefore the Board was under a duty to give warning to the applicant the consequence of his/her decision of not giving evidence. The Board had proceeded to consider the merit of the applicant’s case in her absence and had made the findings above. In my view, the Board had good reasons to disbelieve the applicant’s evidence under the circumstances as stated by the Board.

16.  The applicant has not been able to raise any viable reason to challenge the Board’s Decision up till now. Nor has she given any reason for her long delay in this application.

17.  The applicant therefore fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

DISPOSITION

18.  I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.