TOLENTINO GLAYZA AGSUNUD AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD

HCAL 2062/2019

[2025] HKCFI 2243

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2062 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 June 2018 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 39-year-old national of the Philippines who arrived in Hong Kong on 29 June 2012 with permission to work as a foreign domestic helper until the expiration of her employment contract on 29 June 2014 or within 14 days of its early termination, but when her employment was prematurely terminated on 15 June 2014, she did not depart and instead overstayed, and on 29 July 2014 she surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if she returned to the Philippines she would be harmed or killed by her father for losing her job in Hong Kong due to her pregnancy and thereby unable to send her parents any money for their support, and upon subsequently giving birth to her son, the 2^nd Applicant (“A2”) on 28 December 2014, she also raised a non-refoulement claim for him on the same basis. They were subsequently released on recognizance pending the determination of their claims.

2.  A1 was born and raised in Tumauini, Isabela, the Philippines. After leaving school she went to work in Dubai as a receptionist until 2012 when she returned to her parents’ home in the Philippines.

3.  As her parents were farmers earning little, A1 decided to come to Hong Kong to work as a foreign domestic helper, which she did on 29 June 2012, and to remit part of her salary to her parents every month for their support.

4.  While in Hong Kong she met and formed a relationship with a Filipino man, but when she later became pregnant with their child A2 which then led to the early termination of her employment in June 2014, and when she informed her parents, they became furious as she could no longer work to support them, and for which her father threatened to kill her and her child upon their return, and so A1 was afraid to return to the Philippines and instead overstayed in Hong Kong, and subsequently raised the non-refoulement claim for protection for both herself and her son, for which she completed a Non-refoulement Claim Form (“NCF”) on 28 June 2017 for both of them and jointly attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 31 July 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 both Applicants and found no substantial grounds for believing that their claimed risk of being harmed or killed by A1’s father is real and foreseeable upon their return to the Philippines due to the absence of or low intensity and frequency of past ill-treatment from A1’s father, that there is no evidence of any real intention of A1’s father to seriously harm or kill either of them other than some angry words and empty threats uttered in just one telephone conversation some years ago in 2014, that in any event it was a private dispute between A1 and her father only without any official involvement that state or police protection would be available to both Applicants if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that supports and assistances are available from various government departments and NGOs for single mothers and illegitimate children in the Philippines, and that reasonable internal relocation alternatives are also available in the Philippines with a large population of 102 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 father to locate them.

7.  On 14 August 2017 A1 lodged an appeal to the Torture Claims Appeal Board (“Board”) for herself and A2 against the Director’s decision, and for which they attended an oral hearing on 7 May 2018 before the Board during which A1 gave evidence on behalf of both of them and answered questions raised of their claims by the Adjudicator for the Board. On 19 June 2018 their appeal was 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 father over their dispute that caused her to overstay in Hong Kong to seek protection for both herself and her son but found no reliable evidence of any real intention of her father to seriously harm or kill either of them other than some angry words and empty threats uttered in one telephone conversation years ago or that he would still have any adverse interest in them after all these years, and that in any event it was a private and personal dispute between A1 and her father only without any official involvement that state or police protection would be available to the Applicants upon their return to the Philippines as well as support and assistances from various government departments and NGOs to them if resorted to, and that there are also reasonable internal relocation alternatives for them to move safely to other parts of the country away from A1’s home district without any risk of being located that their claims for non-refoulement protection failed on all applicable grounds.

9.  On 19 July 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 A1’s supporting affirmation of the same date to which she just stated that they reject the decision but without explaining why or putting forth any proper ground for their intended challenge, nor were they 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 June 2018 after discounting the month of August for the court’s vacation, the Applicants were therefore some 9 months 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 9 months must be considered as very substantial and inordinate, for which A1 did not provide any explanation or reasons in their Form or affirmation, nor was she able to do so at the hearing of their application other than blaming it on her having forgotten about the matter, and as the record shows that the decision was sent on the same day of 19 June 2018 to the Applicants at their then reported address without being returned through undelivered post, I am unable to see any good or valid reason for their such serious delay.

13.  As for the merits, if any, of their intended application, as noted above that the Applicants failed to put forward any proper ground in their Form or affirmation, nor was A1 able to do so at the hearing of their application either for herself or A2 apart from confirming that A2 is also a Filipino citizen as both of his parents. 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 claims 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 either claims of the Applicants.

17.  I am of course mindful of the fact that A2 is still a minor at the present age of 10 years old only and was without legal representation in these proceedings as required by Order 80 rule 2 of the Rules of the High Court, or for that matter in his appeal before the Board, and hence it would be necessary for the Court to scrutinize and examine whether his claim though premised on his mother’s claim had been properly and separately considered and determined by the Board in a manner sufficiently to meet the high standards of fairness required for proceedings of this nature, and to see whether there are underlying matters that may support his potential minor-specific non-refoulement bases which the Board might have failed to properly consider and which A1 or A2 failed to raise due to lack of legal representation in the leave application before the Court, as held to be appropriate by the Court of Appeal in Fabio Arlyn Timogan [2020] HKCA 971 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-treatment which may not reach the level of persecution in the case of adult may do so in the case of a child.

18.  In the present case of A2, while his claim was essentially premised on his mother A1’s claim, the Board did in my view properly and separately consider his personal circumstances as an illegitimate child born to both Filipino parents in Hong Kong who has never been to the Philippines and has all along been receiving his education in Hong Kong by referring to relevant COI to ensure that upon his return to his parents’ home country that he will not be at any risk under any of the applicable grounds (see [67] – [73] and [89] – [91] of the Decision). As such, and as I am also unable to find any underlying matter which may support any potential minor-specific non-refoulement bases in A2’s case that might not have been properly considered by the Board due to lack of legal representation for him in his appeal, and as there is no merit in his intended application for judicial review, I shall therefore treat the lack of legal representation for A2 in these proceedings as a mere irregularity, as adopted in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, and applied in Re Jasvir Singh [2021] HKCA 53.

19.  For all these reasons 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