REYES LUCY MANALO AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 410/2018

[2020] HKCFI 1628

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 410 of 2018

     Application for Leave to Apply for Judicial Review

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

Following:

1.  extension of time for the application for leave to apply for Judicial Review ofthe decision of Torture Claims Appeal Board dated 28 August 2017 refused; and

2.  the application for leave to apply for Judicial Review dismissed.

Observations for the Applicants:

1.   The 1^stApplicant (“A1”) is a 45-year-old national of the Philippines who last arrived in Hong Kong on 26 November 2013 with permission to work as a foreign domestic helper until the expiration of her employment contract on 26 November 2015 or within two weeks of its early termination.  On 20 January 2014 her employment contract was prematurely terminated, but she did not depart and instead overstayed until 26 February 2014 when shesurrendered to the Immigration Department and raised a non-refoulement claim on the basisthat if she returned to the Philippines she would be harmed or killed by her abusive husband, and after she gave birth to her daughter, the 2^ndApplicant (“A2”) on 21 July 2014 in Hong Kong, she also raised a similar claim for her on the same basis.  They were subsequently released on recognizance pending the determination of their claim.

2.   A1 was born and raised in Sta Rita, Calapan, Oriental Mindoro, the Philippines. After leaving school she married her husband and gave birth to four children.

3.  Her husband had a violent temper and had once shot and killed someone while drunk, and was throughout the marriage abusive towards A1 especially when he was drunk that he would slap, punch and kick her at will, and on three particularly violent occasions A1 suffered injuries which required medical attention, but of which she never reported to the police as her husband was an influential man in their neighbourhood with political connections.

4.  To avoid further abuses from her husband, A1 started working as a foreign domestic helper in Hong Kong in 2007, returning to her home in the Philippines only during holidays.

5.  However, after her last employment contract was terminated in January 2014 after she became pregnant with A2 arose from an affair with another man in Hong Kong, she did not depart for the Philippines due to her fear that she would be harmed or killed by her husband over her affair with another man and the resultant pregnancy, and upon her surrender to the Immigration Department, she raised her non-refoulement claim for herself and upon the birth of A2 she also raised similar claim on her behalf, for which A1 completed a Non-refoulement Claim Form for both of them on 27 April 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.  By a Notice of Decision dated 15 September 2015 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 torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights (“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 all the relevant circumstances of the Applicants’ claim and assessed the risk of harm from A1’s husband upon their return to the Philippines as low due to the low intensity and frequency of past ill-treatment from him,that it was a private domestic dispute between A1 and her husband 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 107 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 work experience to move safely with A2 to other part of the Philippines away from her home district in large citiessuch as Manila where it would be difficult if not impossible for A1’s husband to locate them.

8.  By a Notice of Further Decision dated 8 August 2017 the Director again rejected theApplicants’ claim in the absence of any response from them to an earlier invitation to submit additional facts which may be relevant to their non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

9.  By then the Applicants were already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 24 September 2015, and for which they attended an oral hearing on 17 October 2016 before the Board during which A1 gave evidence and answered questions put to her by the adjudicator for the Board.  On 28 August 2017 their appeal was dismissed by the Board which also confirmed the Director’s decisions.

10.  In its decision the Board found no reliable evidence to support A1’s claimed fear of harm from her husband upon her return to the Philippines as she has had no further contact with him since 2009 that her claim that he may kill her upon finding about her affair and her birth of A2 with another man is based entirely on her own speculation, and in the absence of any evidence of any threats directly from her husband after all these years other than some hearsays, and that with state protection available to them that their claim for non-refoulement protection failed on all applicable grounds.

11.  On 13 March 2018 the Applicants filed their Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in their Form, and in their supporting affidavit of the same date they merely exhibited copies of those decisions that they wish to challenge. 

12.  The Applicants however were by then also late with their 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 date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

13.  As the last day of the three-month period for them to file their Form 86 fell on 28 November 2017, the Applicants were therefore 3 ½ months late with their 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 merit of the intended application; and (iv) any prejudice to the putative respondent and to public administration: see Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393.

14.  In the Applicants’ case, a delay of 3 ½ months must be considered as significant or substantial, for which they did not provide any explanation in their affidavit, nor did they request any oral hearing for their application.  As such I do not see any good reason for their delay.

15.  As for the merit, if any, of their intended application, as noted above the Applicants did not put forward any ground for seeking relief, and in the absence of any legal error or procedural unfairness in their process before the Director or the Board or in their decisions being identified by the Applicants, I do not find any reasonably arguable basis for them to challenge the findings of the Director or the Board.

16.  As has been repeatedly emphasized by the Court of Appeal, judicial review does notoperate as a rehearing of a non-refoulement claim when the proper occasion for the applicant to present and articulate his or her 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.  The fact is that it has been established by the Director in his decision that the risk of harm in the Applicants’ claim is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of the Philippines, a decision also confirmed by the Board,there is simply no justification to afford them 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 Applicants’ claim.

19.  For these reasons I am not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review, and in the absence of any good reason for their delay, I refuse to extend time and accordingly dismiss 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