JALANDRA MAE ANN DAGAMAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1960/2019

[2024] HKCFI 3172

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1960 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;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is an application by Madam Jalandra Mae Ann Dagaman (the “Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (the “Board”) dated 12 May 2017 (the “1^st Board Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 24 November 2014 (the “1^st DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (the “Claim”).

Background of the Applicant

2.  The Applicant is a Filipino.  She was born on 17 December 1968 in Manapla, Negros Occidental, the Philippines.  She was brought up in a Christian family.  Her late father was a Roman Catholic and her mother is a Protestant. 

3.  She completed her studies at University of Negros Occidental in 1988 and worked as a foreign domestic helper (“FDH”) from 1994 to 2004.

The Claim

4.  The Applicant relied on the following facts for her claim.  She came to Hong Kong to work as a FDH in October 1994.  She was not married but became pregnant in December 1998.  She returned to the Philippines to give birth to her daughter on 13 May 2000.  Her parents did not accept her getting pregnant without being married.  They did not speak with her for some times but eventually agreed to look after her daughter for her.  The Applicant returned to Hong Kong on 21 May 2000.

5.  The Applicant became pregnant again in February 2002 and gave birth to another daughter (“JXP”) on 18 September 2002 in Hong Kong.  A Hong Kong permanent resident (“DV”) is the father of JXP. 

6.  The Applicant received a phone call from her mother in around 2003 about the demise of her father.  She mentioned the birth of JXP to her mother and her mother got angry.  Her mother told her that she could only go back to the Philippines if she married the father of JXP.

7.  The Applicant’s employment contract was terminated in 2004.  Her application to extend her stay was rejected and she overstayed in Hong Kong since 12 April 2004.

8.  She became pregnant with another daughter of DV in around January 2013.  On 1 April 2013, she was arrested by the police for theft and breach of condition of stay and was later sentenced to a term of imprisonment.

9.  The Applicant claimed that her mother and other family members would not accept her for giving birth to two more daughters outside wedlock.  They would treat her as an outcast and punish her for her actions, although her punishment would probably not be a physical one but she would suffer emotionally (§6.12 of the 1^st DOI Decision).  She also claimed that the Filipino government and society would not provide any assistance to her if she were returned to the Philippines.  The Applicant also wished to remain in Hong Kong with her daughters.

Procedural history

10.  As stated above, the Applicant was arrested on 1 April 2013.  By a written representation of 23 May 2014, the Applicant lodged the Claim for herself and for JXP.

11.  In the 1^st DOI Decision, the Director had considered the Claim on the following grounds under the United Screening Mechanism (“USM”), namely:

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

(b)  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR”) (“BOR 3 risk”); and

(c)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

12.  By the 1^st DOI Decision, the Director refused the Claim based on the three grounds above.  The Applicant and JXP filed an appeal/petition to the Board (“1^st Appeal”).  By the 1^st Board Decision, the Board affirmed the 1^st DOI Decision.  The Board rejected and dismissed the 1^st Appeal.

13.  By a letter dated 19 April 2017, the Director invited the Applicant and JXP to submit additional facts, if any, which they considered relevant to their non-refoulement claims on all applicable grounds for non-refoulement protection, including any other absolute and non-derogable rights under BOR including right to life under Article 2 of BOR.

14.  The Applicant did not submit any additional materials or facts on any other absolute and non-derogable rights under BOR, particularly on BOR 2 risk, to the Director.  The Director proceeded to consider further whether the Applicant and JXP would be subject to any risk of their absolute and non-derogable rights under BOR (including right to life under BOR 2) being violated upon their removal to the Philippines (“BOR 2 risk”).

15.  By a decision dated 18 May 2017 (“2^nd DOI Decision”), the Director refused claims of the Applicant and JXP based on BOR 2 risk.  The Applicant brought an appeal for herself against the 2^nd DOI Decision (“2^nd Appeal”).

16.  After a hearing on 16 September 2020, the Board handed down its decision on the 2^nd Appeal on 22 January 2021 dismissing the same (“2^nd Board Decision”).

17.  Before the Board had dealt with the 2^nd Appeal, the Applicant (as the sole applicant) filed the Form 86 herein (the “Form 86”) on 11 July 2019 seeking leave for judicial review of the 1^st Board’s Decision.  The Applicant confirmed to the court at the hearing of 17 October 2024 (“Court Hearing”) that JXP had since obtained the status of Hong Kong permanent resident and thus, did not need to pursue the Claim or the BOR 2 risk claim on her part.

18.  At the Court Hearing, the Applicant confirmed that she had not applied for leave for judicial review in respect of the 2^nd Board Decision.  Thus, this application for leave for judicial review only confines to the 1^st Board Decision concerning the Applicant.

19.  The Applicant filed her supporting affidavit on 11 July 2019 (the “Supporting Affidavit”).  In the Form 86, the Applicant named the Board as the proposed respondent and the Director as the interested party.

20.  Order 53 rule 4(1) of the Rules of the High Court provides that:

“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.”

21.  The 1^st Board Decision was issued on 12 May 2017.  As such, the Applicant had to file the Form 86 latest on 14 August 2017 (12 and 13 August 2017 being Saturday and Sunday).  The Form 86 was filed on 11 July 2019 and it was late for almost 23 months. 

22.  No application for extension of time to file the Form 86 was made by the Applicant and I enquired with the Applicant at the Court Hearing for explanation for the delay in her filing of the Form 86.

23.  The Applicant explained that she did not know that she had to file the Form 86 until she was told by the immigration officer handling her case to do so.  She then attended the court immediately to file the Form 86.  The Applicant said that this was the only reason for her late filing of the Form 86.

24.  In considering whether to extend time for an applicant to apply for leave for judicial review, the court takes into account: (1) the length of the delay; (2) the explanation for the delay; (3) merits in the substantive application; (4) the balance of prejudices to the applicant and the proposed respondent if extension of time is granted; and (5) whether the application raises questions of general public importance which are likely to have to be resolved by the court in any event. (AW v Director of Immigration (unreported) CACV 63/2015, 3 November 2015).  Merits is of course a very important factor.  However, it was held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 at 693B-C that where an applicant was many months out of time, leave might be refused “however strong the complaint might otherwise be.”

25.  The Applicant was late for almost 23 months in filing the Form 86.  This is a serious and substantial delay.   

26.  The explanation for the delay provided by the Applicant was far from satisfactory.  Ignorance of law or rules by itself is not an acceptable explanation.  If the Applicant was dissatisfied with the 1^st Board Decision, she should have made immediate enquiries as to how she might overturn the 1^st Board Decision.  She might consider approaching the Duty Lawyer Service which had previously acted for her in the application to the Director or contacting her case officer in the Immigration Department instead of sitting there doing nothing until the case handling immigration officer told her to make application to the court.

27.  The delay in this case was so substantial that in the absence of a reasonable explanation, leave may be refused on this ground alone without consideration of merits.

28.  For the sake of completeness, I shall also deal with the merits of the Applicant’s application below.

The 1^st DOI Decisions

29.  In the 1^st DOI Decision, the Director noted that the Applicant’ mother and family members did not harm her when she returned to the Philippines to give birth to her first daughter and they never issued any threats towards her when she gave birth to JXP.  The Director did not see any basis for her to claim that she faced risks of torture, CIDTP or persecution from them.

30.  On the issue of state protection, the Director found that the Filipino government was able and willing to protect the rights of its citizens.

31.  The Director further found that internal relocation would be viable.  If the Applicant moved to Manila, her family would have great difficulty in locating her.  After considering her age and work experience, the Director found that it would not be unduly harsh to expect her to relocate to those areas and lead a normal life with JXP.

32.  For the reasons set out in the 1^st DOI Decision, the Director rejected the Claim based on torture risk, BOR 3 risk and persecution risk.

The 1^st Board Decisions

33.  Pursuant to section 12 of Schedule 1A of the Ordinance and §15 of the Practice and Procedure Guide of the Administrative Non-refoulement Claims Petition Scheme, the Board elected not to have an oral hearing for the 1^st Appeal. 

34.  The Board proceed on the assumption that the Applicant’s contentions were accepted in full (§45 of the 1^st Board Decision) but noted that the Applicant and JXP could not establish any risk of harm from the Applicant’s family because they had never issued any threat towards the Applicant or JXP.  The Applicant’s case indicated that she was concerned with the disgrace and emotional pressure she might face when she returned to her Christian community as an unmarried mother with illegitimate children to support.

35.  The Board noted that the societal view in the Filipino community had evolved over the century.  The growth of single parenthood incidence led the Filipino government to enact the Solo Parents’ Welfare Act in 2000 and to introduce services, benefits and privileges programmes for single parents and their children. 

36.  The Board noted that certain organizations, such as the Philippine Commission on Women, the Philippine Department of Social Welfare and Development and various other non-government organizations, also provide support to women in need.  If the Applicant faced any problems in her home village, there were “plenty of options” for her to relocate to and receive the assistance she required (§33 of the 1^st Board Decision).

37.  The Board held that the unsubstantiated subjective belief of the Applicant about her possible situation in the Philippines could not be a valid basis for claiming risk of torture, CIDTP or persecution.  In any event, she could avail herself of state protection and internal relocation to mitigate the perceived risks of harm.  Her appeal against the 1^st DOI Decision was therefore dismissed.

Legal principles applicable to judicial review

38.  In a judicial review, the court does not step into the shoes of the decision makers.

39.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“The role of the court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the 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”.

40.  In Po Fun Chan v Winnie Cheung (supra), the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

41.  The Applicant did not advance any grounds for her intended judicial review in the Form 86.  In the Supporting Affidavit, the Applicant stated that: “I still want to stay H.K. SAR because of the same reason that I apply before (referred my old documents) my problem with my family in Philippines.  The other reason is I want to be with my children. They need me as much as I need them.  No body will take care of them as their father is working.  Im [sic] begging to grant my request.”

42.  No proper ground for her intended challenge was stated in the Form 86 and/or the Supporting Affidavit.  The Applicant did not provide any particulars or specifics as to how the Board had erred in the 1^st Board Decision in affirming the 1^st DOI Decision, or in what way was the 1^st Board Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters. 

43.  At the Court Hearing, the Applicant told me that she was still living with DV and they planned to get marry.  She wanted to stay in Hong Kong to take care of her daughters.  The Applicant confirmed that she did not find any error of law, procedural unfairness or irrationality in the 1^st DOI Decision or the 1^st Board Decision.

44.  Having rigorously examined the 1^st Board Decision and the 1^st DOI Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the torture risk, BOR 3 risk and persecution risk under the USM; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness.  I can understand the Applicant’s wish to take care of her daughters in Hong Kong but that is not a ground for seeking non-refoulement protection.

45.  The Board was of the view that there was not a real risk that the Applicant would face any of the proscribed forms of harm should she return to the Philippines.  Reasonable state protection was available and internal relocation was viable to the Applicant.

46.  It was on such basis that the Board found that the Applicant had failed to prove her entitlement to non-refoulement protection for any of the torture risk, BOR 3 risk or persecution risk under the USM. These are findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such finding involved error of law, procedural unfairness or irrationality.  In this case, the court does not detect any error of law in the 1^st Board Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The 1^st Board Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The proposed judicial review has no realistic prospects of success.  

Conclusion

47.  The Applicant filed the Form 86 substantially out of time without leave of the court nor good reasons.  Having considered the 1^st Board Decision and the 1^st DOI Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.

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