JAVILLONAR JULIETA MERCADO v. TORTURE CLAIMS APPEAL BOARD

HCAL 759/2021

[2025] HKCFI 2553

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 759 OF 2021

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;

1.  Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 3 February 2021 be refused; and

2.  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 on the basis that if she returned to the Philippines she would be harmed or killed by her half-brother over their land dispute in her home village and/or by her creditor over her unpaid debts. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Aringay, La Union, the Philippines. After leaving school she worked in an electronic factory in Manila to make her living.

3.  After her father passed away in 2007, she inherited her share of her father’s estate in some farmland in her home district, but of which her half-brother Demetrio who was a drug abuser and a local gangster also coveted as he was not satisfied with his own share of their father’s estate, and demanded the Applicant to hand over the farmland to him with threats of violence against her.

4.  On one such occasion when the Applicant again refused his demand, Demetrio tried to attack her with a wooden stick, but the Applicant managed to make her escape from the scene to hide in her uncle’s place, but shortly thereafter Demetrio came with some men to outside the uncle’s house and fired some gun shots to frighten the Applicant by threatening to shoot her next time if she still refused to hand over the farmland to him.

5.  As a result the Applicant became fearful for her life and decided to leave the country by applying to work in Hong Kong as a foreign domestic helper, which she did in 2008 when she departed the Philippines for Hong Kong to start her first employment, during which she also borrowed a loan from some finance company in Hong Kong to be repaid by monthly instalments plus interests but which she subsequently defaulted, and for which her creditor kept chasing her with threatening letters and telephone calls, and as she also continued to receive threats from Demetrio whenever she returned to the Philippines for holidays, and so when her last employment was prematurely terminated in September 2015, she was afraid to return to the Philippines and therefore overstayed in Hong Kong, and subsequently raised her non-refoulement claim for protection, but for which she failed to complete the Non-refoulement Claim Form (“NCF”) within the time stipulated that her claim was then treated as withdrawn, and on 13 September 2018 she was arrested by police for using a forged identity card and undertaking unauthorized employment, and was subsequently convicted and sentenced to prison for 15 months.

6.  Upon her discharge from prison in July 2019 and was referred to the Immigration Department for deportation, the Applicant again raised her non-refoulement claim for protection, which was then treated by the Director as a request to make a subsequent claim, and for which she was allowed to proceed by completing her NCF on 8 October 2019, and also attended a screening interview before an immigration officer with legal representation from the Duty Lawyer Service (“DLS”).

7.  By a Notice of Decision dated 27 December 2019 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”).

8.  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 half-brother Demetrio and/or her creditor upon her return to the Philippines as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of Demetrio or her creditor to seriously harm or kill her other than to press her to yield to their demands, that in any event these were private family or monetary disputes between her and her half-brother and/or her creditor 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 105 million people spread across a vast territory of more than 300,000 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 Cebu where it would be difficult if not impossible for anyone to locate her.

9.  On 9 January 2020, 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 4 November 2020 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 3 February 2021, her appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision the Board accepted the Applicant’s claim of fear of harm from her half-brother Demetrio and/or her creditor but found no reliable evidence of any real intention of either of them to seriously harm or kill her other than angry words and empty threats or based on unsubstantiated hearsays and suspicions, and that in any event these were private family or monetary disputes between her and her half-brother or her creditor 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 anyone that her claim for non-refoulement protection failed on all applicable grounds.

11.  On 25 May 2021 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 to which she just attached a copy of the decision only without putting forth any proper ground for her intended challenge.

12.  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.

13.  As the last day of the three-month period for her to file her Form 86 fell on 3 May 2021, the Applicant was therefore some 3 weeks 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.

14.  In the Applicant’s case, a delay of 3 weeks must be considered as significant, for which she did not provide any explanation or reasons in her Form or affirmation, nor was she able to do so at the hearing of her application, and as the record shows that the decision was sent on the same day of 3 February 2021 to her then reported address without being returned through undelivered post, I am unable to see any good or valid reason for her delay.

15.  As for the merits, if any, of her intended application, as noted above that the Applicant also failed to put forward any proper ground in her Form or affirmation for her intended challenge, nor was she able to do so at the hearing of her application. As such, 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 merits in her intended application either.

16.  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.

17.  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 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.

18.  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.

19.  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 significant 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