VILLANUEVA REGGIE CAYANAN AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 817/2018

[2020] HKCFI 2376

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 817 of 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Leave to apply for judicial review refused.

Observations for the Applicants:

1.  The 1^st Applicant (“A1”) is a 40-year-old national of the Philippines who last arrived in Hong Kong on 23 August 2014 with permission to work as a foreign domestic helper until the expiration of her employment contract on 13 February 2016 or within 14 days of its early termination, but when her employment was prematurely terminated on 30 November 2015, she did not depart and instead overstayed, during which she gave birth to a daughter, the 2^nd Applicant (“A2”) out of a relationship with a man in Hong Kong, and on 15 March 2016 the Applicants surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if they returned to the Philippines they would be harmed or killed by A1’s husband over her adulterous affair in Hong Kong resulted in the birth of A2.  They were subsequently released on recognizance pending the determination of their claim.

2.  A1 was born and raised in Iloilo City, the Philippines.  After leaving school she worked in various odd jobs, married her husband and raised a family of two children in her home district.

3.  To help out her family’s finance, A1 went to Singapore in 2005 to work as a foreign domestic helper before coming to Hong Kong in 2007 for similar employment, returning to home in the Philippines for vacation only every 2 years.

4.  Over the years A1 had drifted apart from her husband, but during her last vacation back home in November 2013 her husband tried to restore their relationship, and when A1 refused, he beat and threatened her, which caused further deterioration of their relationship.

5.  Upon her return to work in Hong Kong, A1 started a relationship with another man in August 2014 and soon became pregnant with A2, whom she later gave birth on 2 August 2015, and as a result her employment contract was terminated, and as A1 feared that they would be harmed or killed by her husband upon their return to the Philippines, she therefore overstayed in Hong Kong and subsequently raised their non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form on 5 October 2016 jointly for herself and A2, and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.  By a Notice of Decision dated 27 April 2017 the Director of Immigration (“the Director”) rejected the Applicants’ claim 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”).

7.  In his decision the Director took into account of all the relevant circumstances of the Applicants’ claim and assessed the level of risk of harm from A1’s husband upon their 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 that A1’s husband was even aware of A2 or has any intention to harm or kill her, that in any event their problem with A1’s husband is a private domestic dispute without any official involvement that state or police protection would be available to the Applicants if resorted to, and that reliable and objective Country of Origin Information show that reasonable internal relocation alternatives are 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 with A2 to other part of the Philippines away from her home district in large cities such as Manila where it would be difficult if not impossible for her husband to locate them.

8.  On 10 May 2017 the Applicants lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision. However, on 5 March 2018 A1 wrote to the Director and the Board to request to withdraw their appeal when she stated as follows;

“ … We want to go back to our home country Philippines since it is safe for us to go back. I want to withdraw our non-refoulement claim appeal as soon as possible so that we can go back. I have no money to buy air ticket. Please arrange as soon as possible.”

9.  On 13 March 2018 the Board wrote to the Applicants in reply as follows:

“ … Your letter has been placed before the Board. Unless you advise us otherwise, we presume that –

(a) you are applying to withdraw your appeal/petition against the immigration officer’s decision(s) as contained in the Notice of Decision of 27 April 2017;

(b) you consider that it is safe for you to return to the Philippines; and

(c) you understand the consequences of the proposed withdrawal (i.e. once the withdrawal is confirmed, your appeal/petition will be dismissed and the immigration officer’s decision(s) will be confirmed. Your appeal/petition will be disposed of and finally determined by the Board. No further action will be taken by the Board in relation to your appeal/petition.).

You are respectfully advised to seek independent legal advice on the consequences of the proposed withdrawal under your application.

If we do not receive any reply from you on or before 20 March 2018, the Board will consider approving your application for withdrawal.”

10.  As no further reply had been received from the Applicants, the Board by a letter dated 21 March 2018 informed the Applicants that their appeal had been withdrawn and that the Director’s decision had been confirmed, as it stated as follows:

“ … On 13 March 2018, the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) wrote to you seeking clarification regarding your application for withdrawal of your appeal/petition.  The Board has not received any reply from you.

The Board has considered your application to withdraw your appeal/petition having regard to all the available information placed before it.  After consideration, the Board is satisfied that your application to withdraw the appeal/petition was freely sought, and that you understood the consequences of the withdrawal.  The Board is also satisfied that there is good reason for your proposed withdrawal of the appeal/petition, namely, that you consider it safe for you to return to the Philippines.  Under the circumstances, the Board has given direction that your appeal/petition is withdrawn.  The Board has also directed that the immigration officer’s decision(s) of 27 April 2017 is confirmed.

Please note that your appeal/petition has now been disposed of and finally determined by the Board.  No further action will be taken by the Board in respect of your appeal/petition.”   

11.  2 weeks later on 4 April 2018, A1 wrote to the Board to request to re-open their appeal for the following stated reason:

“ … I want to re-open my appeal because this lately that I inform there in Philippines that I’m going back home together with my daughter but my husband got angry and he doesn’t want me to back and he told me if I go back Philippines there will be a big trouble will happen to me. That’s why now I came in your office to ask if I can re-open my appeal…”

12.  By a letter dated 19 April 2018, the Board informed the Applicants that their request to re-open their appeal could not be acceded to as follows:

“ Please be reminded of the material events that followed as a result of your request by way of written submission dated 5 March 2018 to withdraw your Appeal/Petition:

(a) The Board has acted on your request written submission dated 5 March 2018 that your appeal/petition be withdrawn;

(b) The Board has placed your request before a Board Member for consideration;

(c) The said Board Member has considered your request that your Appeal/Petition be withdrawn;

(d) After considering your request, the Board Member has granted your request for withdrawal of your Appeal/Petition;

(e) You were informed by letter dated 21 March 2018 that the Board Member had decided to grant your request for withdrawal of your Appeal/Petition.

As a consequence of the matters stated in the paragraph above:

(a) The Board Member has given a Direction that your Appeal/Petition is dismissed;

(b) The Board Member has given a Direction that the Notice of Decision by the Immigration Department dated 27 April 2017 is confirmed;

(c) Your Appeal/Petition has been disposed of, and has been finally determined by the Board;

(d) No further action can or will be taken by the Board in relation to your Appeal/Petition because the Board is “functus officio”, this means that, after the Board has accepted your withdrawal, the Board has no power or authority to deal any further with your Appeal/Petition. This position in law has been confirmed by the decision in HCAL 20/2015 dated 17 March 2017.

For all the reasons given, your request to resume or reinstate your Appeal/Petition cannot be acceded to.”  

13.  On 10 May 2018 A1 filed a Form 86 for herself and A2 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in their Form, and in A1’s supporting affidavit of the same date she merely repeated her claim that her husband would harm or kill her and A2 if they were to return to the Philippines without putting forward any proper ground for their intended challenge, nor did she request any oral hearing for their application. As such and in the absence of any error of law in the Board’s decision clearly and properly identified by the Applicants, I do not find any reasonably arguable basis for their intended challenge.

14.  It is clear to me from their earlier written request that the Applicants did validly withdraw their appeal as a result of an informed and considered decision to return to their home in the Philippines, and upon which the Board had acted accordingly.  As such the Board is clearly functus officio with no jurisdiction to do anything further regarding their appeal, as correctly pointed out to the Applicants in the Board’s decision to refuse to re-open their appeal, as has been held by the Court of Appeal in Re Das Purnima Rani, CACV 85/2019 [2019] HKCA 669, 13 June 2019, that in such circumstances the Board can only “reinstate” an invalidly withdrawn appeal against the Director’s rejection of a non-refoulement claim, as Hon Lisa Wong J in giving judgment of the court stated in [41]:

“ Once the Board dismisses an appeal against the Director’s refusal of a non-refoulement claim upon a valid withdrawal or abandonment of the appeal by the claimant, in the sense of being the result of a deliberate and informed decision, the appeal is no longer extant and the Board becomes functus officio with no jurisdiction to take any step regarding the appeal. As analysed by DHCJ Yee at [36]-[40] and [47]-[48], s 37V(2)(b) of the Ordinance stipulates that a torture claim rejected by the Director is finally determined when the appeal against it, if one were lodged, was disposed of. Notwithstanding the lack of determination on the merits, the dismissal of an appeal on its withdrawal nevertheless disposed of the appeal. Otherwise, not only would there be no finality in the determination of such claims, much room would be created for abuse by claimants desirous of delaying their removal from Hong Kong by making last minute withdrawals and then subsequently applying for reinstatement of the appeals.”

15.  Of course if on the other hand the withdrawal is invalid due to mistake or misunderstanding in the Applicants’ decision to withdraw their appeal, as pointed out by Her Ladyship in [43] of the judgment, it would remain extant so that the Board can resume processing the appeal upon the Applicants’ application, but as already noted above, this is not what I read from their letter of 4 April 2018 to the Board requesting to re-open their appeal, nor is there any intention shown in their Form 86 or supporting affidavit to contest the validity of their earlier withdrawal of their appeal to the Board against the Director’s decision, other than a claim that A1’s husband “got angry and does not want (her) to go back to the Philippines” which could not, in my view, affect the validity of their earlier withdrawal.  Similarly, nor could their subsequent change of mind, for whatever reason, invalidate their earlier withdrawal of their appeal.     

16.  In the premises, and for these reasons I am not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review, and I accordingly refuse 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