SAZON JAYNE DE LA VEGA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2299/2019

[2025] HKCFI 581

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2299 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;

1.  The Form 86 is amended on the court’s own motion;

2.  The Leave Application be granted in relation to the risk of torture and BOR 3 risk; and

3.  The Applicant to file and issue an originating summons within 14 days of this judgment.

Observation for the Applicant:

Introduction

1.  By prescribed Form 86 filed on 9 August 2019, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review seemed to be against the decision of the Torture Claims Appeal Board/the Non-Refoulement Claims Petition Office (“the Board”) dated 21 September 2016 (“Board’s 1^st Decision”). The Board had dismissed the applicant’s appeal against the decision dated 5 August 2015 (“Director’s 1^st Decision”) of the Director of Immigration (“Director”), who refused the applicant’s claim for non-refoulement protection.

2.  Apart from the subject Decisions stated in the preceding paragraph, there is also a later decision of the Director dated 15 February 2017 (“Director’s 2^nd Decision) and a second decision of the Board dated 23 May 2019 (“Board’s 2^nd Decision”). They will be further referred to when discussing the background of this case.

3.  In Form 86, the applicant did not name any parties as the proposed respondent and the proposed interested party. Instead, the proposed respondent was stated to be “Review my case and Appeal” and the proposed interested party “21 September 2016”. As the Board should have been the proper proposed respondent and the Director the proper proposed interested party, Form 86 will be amended accordingly on the court’s own motion.

4.  As the applicant had requested for a hearing of the Leave Application, this court held a hearing on 5 December 2024. The applicant attended the hearing in person. After having heard from her, this court informed her that the decision would be reserved, and be sent to her updated address.

Background

5.  The background as taken from the decisions of the Director and the Board referred to above can be briefly stated as follows.

6.  The applicant is a Philippines national. She first came to Hong Kong in 2009 to work as a domestic helper, and completed two employment contracts with the last one ended on 23 August 2013. She was last permitted to stay as a visitor until 2 December 2013, but instead overstayed. During her time in Hong Kong, she had an extra-marital affair with a fellow Filipino named Marlon, who was a permanent Hong Kong resident. The affair was discovered by the applicant’s husband and Marlon’s wife in the Philippines.

7.  On 9 April 2014, the applicant was arrested by police for overstaying. On 30 April 2014, she was convicted of the offence of breach of condition of stay and was given a suspended sentence. On 16 June 2014, she was released on recognizance. On 20 June 2014, the applicant lodged a non-refoulement claim covering all applicable grounds other than BOR 2 risk[1] - the risk of torture, BOR 3 risk[2] and persecution risk[3] under the USM.[4] The claim was based on a fear of being harmed or killed by (i) her husband; and (ii) Marlon’s wife.

8.  The applicant is a married woman with a son in the Philippines. When she was working in Hong Kong as a domestic helper, she had an extra-marital relationship with Marlon, who claimed to be a permanent Hong Kong resident. Marlon was a married man but claimed to have separated from his wife in the Philippines. In November 2013, her affair was discovered by the husband who then threatened the applicant via text messages and phone calls. He threatened the applicant that he would kill her if she came back home. The applicant therefore changed the SIM card of her phone to stop the husband from threatening her.

9.  Several months later, the applicant also learned from Marlon that his wife also discovered the affair. Marlon told the applicant that his wife was very angry and threatened to kill the applicant if she were to return to the Philippines. The applicant claimed that her affair with Marlon was ended when she was detained at the Castle Peak Immigration Centre. However, she asserted that her husband and Marlon’s wife would not forgive her and her life was still in danger.

10.  In the Director’s 1^st Decision, the Director decided against the applicant’s claim on all applicable grounds other than BOR 2 risk. The Director found that the level of risk and harm was low as the applicant’s affair with Marlon was solely a private matter without any suggestion of the involvement of government officials. After having considered the country of origin information reports (“COI”), the Director was satisfied that state protection was available and that internal relocation alternatives were available and reasonable. Hence, the applicant’s appeal to the Board against the Director’s 1^st Decision.

11.  In the Board’s 1^st Decision, after the adjudicator had considered the Court of Appeal decision of ST v Betty Kwan [2014]4 HKLRD 277 regarding the guidelines on oral hearing before the Board, the adjudicator decided that no worthwhile and effective representation could be made by holding an oral hearing. He was satisfied that there would not be any procedural unfairness to determine the appeal without an oral hearing. Hence, the adjudicator determined the applicant’s appeal on paper only. The Board found that the extra-marital affair was purely a private dispute between couples, which had no connection with the Filipino authorities. In the absence of any physical harm or domestic violence, the Board found that the husband and Marlon’s wife had no real intention to act on their threats. The Board believed that with the ending of the affair, and the passing of time, the threats relayed from a distant place would have been weakened. In the circumstances, the adjudicator found that the applicant was unable to prove the claimed risk of harm from either her husband or Marlon’s wife. The Board also found that both state protection as well as internal relocation options were reasonably available. The Board concluded that the applicant had not made out a case for non-refoulement.

12.  After the Board’s 1^st Decision was handed down, the Director decided to further canvass BOR 2 risk. On 25 January 2017, the Director wrote to the applicant and invited her to submit additional facts, which were relevant to her non-refoulement claim on all applicable grounds including BOR 2 risk. The applicant, however, did not provide any response by the deadline date of 15 February 2017 stipulated by the Director. In the absence of a response, the Director concluded that the applicant had failed to establish the BOR 2 risk.

13.  On 24 January 2018, the applicant appealed to the Board against the Director’s 2^nd Decision after the requisite appeal period had expired. The applicant provided her explanation for the delay in the filing of the appeal against the Director’s 2^nd Decision by submitting to the Board a copy of her hospital discharge slip and the birth certificate of her daughter born in Hong Kong.

14.  After the same constituted Board had considered the additional materials relating to the BOR 2, the same adjudicator decided that no hearing was needed. He also decided that the nature and scope of non-refoulement protection afforded by BOR 2 had no relevance to the applicant’s non-refoulement claim. The adjudicator concluded, based on the evidence and the new documents, that the applicant would not be at risk of harm from BOR 2 risk if refouled. In the Board’s 2^nd Decision, the Board dismissed the appeal against the Director’s 2^nd Decision.

Legal principles applicable to judicial review

15.  As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see 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.

Whether extension of time should be granted

16.  In neither the applicant’s Form 86 nor her supporting affirmation did the applicant put forth any proposed grounds for the Leave Application. In the affirmation, she deposed that she did not want to go back to her country.

17.  At the hearing, this court was trying to clarify which Board’s Decisions she was applying to challenge. In her Form 86, the only reference to the date was the date of the Board’s 1^st Decision. She stated that in fact she wanted to challenge both the Board’s 1^st and 2^nd Decisions, and wished to amend Form 86 to reflect that. Whilst there is no problem with the time issue in relation to the Board’s 2^nd Decision, her challenge to the Board’s 1^st Decision is out of time as the deadline for the filing of the leave application should have been on 20 December 2016. The applicant explained that around that time, she was pregnant. After she had given birth in 2017, she underwent an operation of her finger.

18.  After the hearing, the applicant brought to court a copy of the birth certificate of her daughter. According to the certificate, the applicant gave birth to a girl on 3 May 2017 in Hong Kong. The name of the father is not stated, and her status of permanent resident is stated to be “Not established”.

19.  The delay is undoubtedly substantial. In considering whether this court should exercise its discretion to extend time to allow the applicant to apply for leave to judicial review the Board’s 1^st Decision, I consider that the applicant’s giving of birth is a weighty factor. Her explanation for the delay is supported by the production of the birth certificate of her daughter. This court accepts the applicant’s explanation for the delay. Of the two Decisions of the Board, the Board’s 1^st Decision is the most substantial as it deals with the claim’s three grounds the Director had originally considered in the Director’s 1^st Decision. If this court were to refuse the applicant’s application to extend time, the potential consequences to the applicant will likely be serious. I also do not find that the substantial rights of any person would be prejudiced. Nor is there much detriment to the good administration: see AW v Director of Immigration [2015] HKEC 2282. In the circumstances, this court believes that it is fair to exercise its discretion in favour of the applicant’s application by extending the time to the applicant to judicial review the Board’s 1^st Decision. Hence, the Form 86 should further be amended by including the Board’s 2^nd Decision in the Leave Application. For the avoidance of doubt, the Leave Application is in respect of the Board’s 1^st and 2^nd Decisions.

20.  The Board’s 1^st and 2^nd Decisions were arrived at without the benefit of a hearing. At the hearing for this Leave Application, the applicant told the court　that the father of the daughter is Marlon. By counting the time backwards for the usual 9-months’ gestation period, I believe that the relationship between the applicant and Marlon must have at least continued up to around July or August 2016. When the Board considered the applicant’s appeal against the Director’s 1^st Decision on paper, the adjudicator had lost the opportunity to clarify from the applicant her relationship with Marlon. The adjudicator’s finding at [33-34] that the applicant had ended her relationship with Marlon seems to have been wrong.

21.  By the time when the adjudicator considered the applicant’s appeal against the Director’s 2^nd Decision, the applicant had provided to the Board the proof of the birth of her daughter. Despite this piece of paper evidence in relation to the applicant’s giving of birth, the adjudicator would not have any evidence that Marlon was in fact the father of the daughter as it was not stated in the birth certificate.

22.  Since the applicant’s asserted fears of harm from her husband and Marlon’s wife stem from her relationship with Marlon, the birth of a child out of this extra-marital relationship is of fundamental importance to the applicant’s claim.

23.  The importance of an oral hearing before the Board was underlined by the Court of Appeal in ST v Betty Kwan (supra.). As has been pointed out by the Court of Appeal, high standard of fairness requires an adjudicator to adopt an active role in the hearing of the appeal. Given the nature of the hearing is that of a “joint endeavour”, the benefit of holding an oral hearing will enable an adjudicator to conduct further probing, questioning or inquiry as a matter of fairness: ST v Betty Kwan (supra.) at [43]. In my view, had an oral hearing been conducted, it is likely that the adjudicator would have found out from the applicant that not only her relationship with Marlon had not ended, she was pregnant with his child and gave birth without naming Marlon as the father in the child’s birth certificate. Hence, when the adjudicator dealt with the appeal against the Director’s 1^st Decision, the adjudicator’s finding that the applicant had ended her relationship with Marlon, thus reducing the risks is based on incomplete evidence. Similarly, when the adjudicator dealt with the appeal against the Director’s 2^nd Decision on paper, he would have no information that in fact Marlon was the father of the child. As shown in the Director’s 2^nd Decision, when the Director, out of his own violation, invited the applicant to submit further materials, he clearly stated that this exercise was not just in relation to BOR 2 risk, but included all the other three grounds of the applicant’s refoulement claim. Hence, had the adjudicator held an oral hearing in the appeal against the Director’s 2^nd Decision, he would have likely assessed all the claimed risks afresh, instead of only BOR 2 risk. A child born out of the extra-marital relationship with Marlon will likely lead to potential escalation of threats by the applicant’s husband and Marlon’s wife. In fact, the applicant informed this court at the hearing that her problem back home has not been solved. Her husband has now found out about this illegitimate child. The potentially heightened risks of harm and ill-treatment are highly relevant to the consideration of the risk of torture and BOR 3 risk.

24.  In the circumstances, I conclude that the adjudicator has failed to make adequate enquiry in both the Board’s 1^st and 2^nd Decisions in relation to the assessment of the risk of torture and BOR 3 risk.

Conclusion

25.  For all the reasons stated above, I am of the view that the applicant’s Leave Application is reasonably arguable in relation to the risk of torture and BOR 3 risk, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

26.  Accordingly, I grant leave to the applicant to apply for judicial review of the Board’s 1^st and 2^nd Decisions in relation to its findings on the risk of torture and BOR 3 risk, and direct that she shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as the respondent and the Director as the interested party.

Orders

27.  The Form 86 is amended on the court’s own motion.

28.  Leave to apply for Judicial Review be granted in relation to the risk of torture and BOR 3 risk.

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