CALSIYAO JONALYN BAYUBAY v. TORTURE CLAIMS APPEAL BOARD

HCAL 1537/2024

[2024] HKCFI 2808

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1537 OF 2024

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 Applicant being absent 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 30 November 2023 be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 36-year-old national of the Philippines who last arrived in Hong Kong on 13 February 2019 as a visitor with permission to remain as such up to 27 February 2019 when she did not depart and instead overstayed, and more than 3 years later on 22 July 2022 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 husband for having an affair with another man in Hong Kong. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Cagayan, the Philippines. After leaving school she married her husband and raised a family with 3 children in his home in Cugawe Cudal, Tabuk City.

3.  In 2014 she went to Qatar to work as a domestic helper, and then in 2016 she started coming to Hong Kong to work as a foreign domestic helper, and after the termination of her last employment on 21 June 2018, she departed for Macau to also work as a domestic helper.

4.  On 13 February 2019 she left Macau to return to Hong Kong as a visitor when she subsequently overstayed, during which she met a Nepalese man and had an affair with him.

5.  However, in July 2022 when she became pregnant with their child, the Nepalese man left her and disappeared, and later she had to abort the fetus in the hospital due to some medical issues, but when her husband in the Philippines heard about her affair and pregnancy, he became furious and threatened to kill her, and so she was afraid to return to the Philippines and therefore surrendered to the Immigration Department to seek non-refoulement protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 15 December 2022 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 26 January 2023 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of her 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”).

7.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her husband upon her 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 her husband to seriously harm or kill her other than angry words and empty threats, that in any event it was a private domestic dispute between the 2 of them only without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in the Philippines with a large population of 116 million people spread across a vast territory of more than 298, 000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move 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 her husband to locate her.

8.  On 7 February 2023 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 14 July 2023 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 30 November 2023, her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of her claim of fear of harm from her husband over her extramarital affair in Hong Kong that caused her to seek non-refoulement protection, that there was no reliable evidence of any real intention of her husband to seriously harm or kill her over their domestic dispute, and that in any event it was a private matter between the 2 of them only without any official involvement that state or police protection would be available to the Applicant upon her return to the Philippines as well as reasonable internal relocation alternatives for her to move safely to other parts of the country away from her home district without any risk of being located by her husband that her claim for non-refoulement protection failed on all applicable grounds.

10.  On 9 September 2024 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form or in her supporting affirmation of the same date in which she just repeated her claim as before but without putting forth any proper ground for her intended challenge, nor did she request any oral hearing for her application.

11.  By then the Applicant was also out of time with her 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.

12.  As the last day of the three-month period for her to file her Form 86 fell on 29 February 2024, the Applicant was therefore more than 6 months late with her 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.

13.  In the Applicant’s case, a delay of more than 6 months must be considered as very substantial and inordinate, for which she did not provide any explanation or reasons in her Form or affirmation, and as the record shows that the decision was sent on the same day of 30 November 2023 to her then reported address without being returned through undelivered post, I am unable to see any good or valid reason for her such serious delay.

14.  As for the merits, if any, of her intended application, as noted above that the Applicant has also failed to put forward any proper ground for her intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge or any merits in her intended application either.

15.  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.

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

17.  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 Applicant’s claim.

18.  For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for her serious delay, I refuse to extend time and 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