CASUGA JENILYN DILIM AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2969/2019

[2023] HKCFI 2611

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2969 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 Applicants in open court;

Order by Deputy High Court Judge To:

1.  Extension of time to apply for leave for Judicial Review be refused; and

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

Observations for the Applicants:

Introduction

1.  This is the Applicants’ application by Form 86 filed on 9 October 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board/ Non-Refoulement Claims Petition Office (the “Board”) dated 14 March 2019 (the “Decision”) dismissing their appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 18 April 2018 (the “Notice”).

2.  As the 2^nd Applicant is a minor, the 1^st Applicant who represents him had been advised by letter of this Court dated 31 December 2021 to seek legal representation by the Legal Aid Department or private solicitors. More than 20 months have lapsed since the date of the Court’s letter, the 1^st Applicant has not taken any steps to arrange legal representation for the 2^nd Applicant. Having considered the merits of the application, the Court regarded the absence of legal representation as a mere irregularity and proceeded with determining their leave application. An oral hearing was scheduled for hearing their application.

3.  The leave application was filed more than six months after the date of the Decision sought to be reviewed. Under section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, the leave application was made more than one month out of time. In AW and Director of Immigration and William Lam[1], the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event. Where the delay is not very substantial, as in the present case, merits of the substantive application is the determinant factor. Interest of justice requires that the issue of delay be determined together with merits of the leave application.

4.  The 1^st and 2^nd Applicants are Philippine nationals, now aged 36 and 8 years old respectively. The 1^st Applicant last entered Hong Kong on 28 November 2012 to work as a foreign domestic helper. She overstayed after her contract of employment was prematurely terminated. She surrendered to the authorities on 16 April 2015 and then lodged a claim for non-refoulement protection on 8 June 2015. She gave birth to her son the 2^nd Applicant on 21 June 2015 and then raised a claim on his behalf on 19 October 2015.

5.  In due course, their non-refoulement claims were assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[2]; BOR 3 Risk[3]; Persecution Risk[4]; and BOR 2 Risk[5]. Their claims were dismissed by the Director’s Notice. Their appeal against the Notice was dismissed by the Decision of the Board. They now apply for leave to apply for judicial review of that Decision.

The Applicants’ case

6.  The following account of Applicants’ case is mainly based on the information in the non-refoulement claim forms prepared by her on her and on the 2^nd Applicant’s behalf with legal assistance and the record of her screening interview in the presence of her lawyer. In gist, they claimed that they would be harmed or killed by the 1^st Applicant’s husband (“husband”) and will be discriminated because of the 2^nd Applicant’s illegitimacy, if refouled back to the Philippines.

7.  The 1^st Applicant was born in San Fernando, La Union, the Philippines. She had worked as a nurse in the Philippines before working as a domestic helper in Singapore and Hong Kong. She married her husband in the Philippines in March 2010 after the birth of their first child.

8.  To improve the financial condition of the family, the 1^st Applicant went to Singapore in 2010 to work as a domestic helper. While she was away, her husband had an affair. She patched her relationship with her husband after she returned from Singapore and gave birth to their second child in May 2012.

9.  With the hope of getting more working experience to qualify for immigration to Canada, the 1^st Applicant came to work as a foreign domestic helper in Hong Kong on 28 November 2012. While she was in Hong Kong, her husband resumed his relationship with his girlfriend. The 1^st Applicant’s relationship with husband deteriorated significantly. She began a relationship with her former boyfriend from the Philippines, Lowell Anora (“Lowell”). Lowell worked in a charcoal ship and came to Hong Kong almost every month.

10.  The 1^st Applicant’s employment contract was prematurely terminated in 2013. She was unable to find new employment and continued to stay in Hong Kong because of her problems with her husband. In June 2015, she gave birth to Lowell’s son, ie the 2^nd Applicant.

11.  In November 2015, the 1^st Applicant was informed by her brother that her husband learned about her relationship with Lowell via a common acquaintance in Hong Kong; that her husband forced into her grandparents’ home while intoxicated in an attempt to abduct her two daughters; that the police was called to deal with the situation; and that her husband was arrested and detained for about 24 hours. Thereafter, her husband went twice to the Applicant’s grandparents’ home threatening to kill the two Applicants.

12.  In May 2017, the 1^st Applicant developed a relationship with a Hong Kong resident (“Andy”) and stopped contacting Lowell. Her husband learned about this new relationship and sent messages to her and Andy threatening to harm them if they came to the Philippines. In January 2018, her husband discovered the 1^st Applicant’s and Andy’s photographs in Facebook and threatened to kill them, if they ever showed up in the Philippines.

13.  On 15 April 2018, the 1^st Applicant gave birth to a son with Andy.

The finding of the Board

14.  The Board accepted the 1^st Applicant’s testimony and assessed the Applicants’ claim on the basis of the case as the 1^st Applicant asserted.

15.  The Board noted that the husband had not attempted to abduct their daughters after he was allowed access to them and had never actually harmed them or the 1^st Applicant’s family. Her husband has maintained a harmonious relationship with their daughters as recently as January 2019. The Board found her husband’s attempt to abduct their daughters and threats to kill the Applicants were caused by the 1^st Applicant’s refusal to allow him access their daughters. It found that her husband’s adverse interest in the 1^st Applicant and Andy had dissipated over time and her husband is no longer a threat to the Applicants and Andy. The Board also found adequate state protection available as the 1^st Applicant’s grandparents were able to obtain police assistance during the 2015 incident.

16.  On the basis of authoritative and credible country of origin information, the Board found that the risk of the 1^st Applicant being discriminated because of her extramarital affairs and the risk of the 2^nd Applicant being discriminated because of his illegitimacy is low and that adequate state protection would be available in the Philippines. The Applicants would have family support from the 1^st Applicant’s family and Andy. Besides, there are various government and non-government organisations providing support and assistance to address women-related issues. The Board also found, given her education and experience, it would not be unduly harsh for the 1^st Applicant to relocate to other parts of the Philippines, such as Manila, Davao, Cebu or one of the urban areas, with the 2^nd Applicant.

17.  Applying the law applicable to the non-refoulement protection under the USM to the facts found, the Board found the Applicants had failed to establish the factual basis to support their claims for protection under any of the four applicable grounds under the USM and dismissed their appeal against the Director’s Notice.

Legal principles applicable to judicial review

18.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[6].

Grounds for judicial review

19.  The Applicants had not advanced any grounds for judicial review in their Form 86. In their supporting affirmation, the only complaint they raised was that the Board disregarded their dangerous situation. The above legal principles had been explained to the 1^st Applicant at the oral hearing. She said she had no idea about any error of law in the Decision and confirmed that she had no complaint about procedural unfairness in the proceedings and did not think that the Decision was irrational. The only ground for judicial review she could proffer was that she and the 2^nd Applicant would be killed by her husband, if they returned to the Philippines.

20.  In the absence of specific grounds of application, the Court in an application for judicial review could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and irrationality in the Decision. The essence of the Applicants’ complaint is that they disagreed with the finding of the Board that it is safe for them to return to the Philippines. In effect, they are seeking to challenge the Board’s finding of fact that their risk of harm in the Philippines is low and that they could safely return to their home country. That is not permissible unless the finding involved errors of law, procedural unfairness or irrationality.

Discussion and conclusion

21.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board assessed the Applicants’ claim on the basis of the case as they asserted. The Applicants could not have any complaint for the Board’s accepting their evidence. It was on the basis of these findings of facts that the Board found the feared risk of harm unlikely to materialize, that state protection is available and that internal relocation is feasible. Hence, the Board came to the conclusion that the Applicants are not entitled as a matter of law and fact to non-refoulement protection under any of the four applicable grounds. These findings of facts are exclusively within the province of the Board to make, which the Court on a judicial review will not interfere, save when such finding involved error of law, procedural unfairness and irrationality. The Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success. Accordingly, leave to file the application for leave to apply for judicial review out of time is refused and the leave application is dismissed.

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