CABE LYRMA TUAZON v. TORTURE CLAIMS APPEAL BOARD

HCAL 1941/2019

[2023] HKCFI 2509

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1941 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 / the Applicant being absent 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 April 2019 be refused; and

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

Observations for the Applicant:

1.  The Applicant is a 52-year-old national of the Philippines who arrived in Hong Kong on 28 November 2012 as a visitor with permission to remain as such up to 12 December 2012 when she did not depart and instead overstayed, and was arrested by police almost 3 years later on 5 November 2015. After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim on the basis that if she returned to the Philippines she would be harmed or killed by her family members for converting her religion from Christianity to Islam and/or by her abusive husband and/or by his creditor over his unpaid debts. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised as a Catholic in Catbalogan Samar, the Philippines. After leaving school she worked as a clerk in a government department, married her husband and raised a family with 2 children in her husband’s home district in Las Pinas City.

3.  In 2005 her husband lost his job and was unable to find other jobs, and as a result he was always in bad mood and became abusive towards the Applicant by frequently losing temper with her when he would then beat her.

4.  In about the same time while under the influence of a friend, the Applicant converted her religion from Christianity to Islam, and when her father and siblings found out about it, they became furious and demanded that she reconvert back to Catholic, and when she refused, they threatened to kill her.

5.  In 2008 in order to ease their family’s finance, her husband borrowed a loan from a local money-lender with monthly interest payments until full settlement of the loan, for which the Applicant had to assist her husband with her monthly income from her job.

6.  However, in about 2011 they started to have difficulty making the monthly interest payments, and one day in late 2011 her husband’s creditor threatened to send gangsters to kill them if they still failed to repay the loan by mid-November 2011.

7.  Fearing for their life, the Applicant and her husband went into hiding from the creditor, and on 28 November 2012 the Applicant departed the Philippines for Hong Kong where she overstayed, and after her arrest by the police almost 3 years later she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 17 March 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

8.  By a Notice of Decision dated 13 December 2016 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”).

9.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real or substantial risk of her being harmed or killed by her family members or her husband or his creditor upon her return to the Philippines 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 any of them to seriously harm or kill her or to still have any adverse interest in her after all these years since she left the country, that in any event her problems with them were all just some private family or domestic or monetary disputes 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 102 million people spread across a vast territory of more than 298,000 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 Manila where it would be difficult if not impossible for anyone to locate her.

10.  On 22 December 2016 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 20 December 2018 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 3 April 2019 her appeal was dismissed by the Board which also confirmed the Director’s decision.

11.  In its decision the Board found no evidence of any real intention of any of her family members or her husband or his creditor to seriously harm or kill her over what were essentially private family domestic or monetary disputes 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 for her to move safely to other part of the country away from her home district without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.

12.  On 10 July 2019 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 her supporting affirmation.

13.  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 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.

14.  As the last day of the 3 month-period for her to file her Form 86 fell on 3 July 2019, the Applicant was therefore 7 days 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.

15.  In the Applicant’s case, a delay of 7 days cannot be considered as significant, for which she did not provide any explanation in her Form or affirmation, but given the relatively insignificance of the delay, I propose to focus on the merits or prospect of success of her intended application.

16.  However, as noted above that the Applicant has also failed to put forward any proper ground for her intended challenge, 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 any reasonably arguable basis for her intended challenge or any merits in her intended application.

17.  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.

18.  In the Applicant’s case, the fact is that it has also been established by both the Director and the Board in their respective decision that the risks of harm in her claim if real are all localized ones 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.

19.  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.

20.  Moreover, the Applicant recently on 2 September 2023 wrote to the Court requesting to withdraw her application as she wants to return to her home country as soon as possible.

21.  In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of her latest confirmation of her wish to return to her home country, 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