SAYAAN LAILA BATAO-EY alias BATAO-EY LAILA alias SAYAAN LAILA ALIAS SAYAAN LAILA B alias SAYAAN LAILA BOTAO-EY v. TORTURE CLAIMS APPEAL BOARD

HCAL 784/2021

[2022] HKCFI 2397

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 784 of 2021

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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 34-year-old national of the Philippines who last arrived in Hong Kong on 16 August 2015 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 15 May 2017 or within 14 days of its early termination, but when her employment was prematurely terminated on 2 November 2015, she did not depart and instead overstayed in Hong Kong, and was arrested by police on 29 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 former boyfriend for leaving their relationship. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Alfonso, Gregorio Del Pilar, Ilocos Sur, the Philippines. After leaving school she started a relationship with her former schoolmate, and worked as a kitchen helper and a domestic helper in her home district.

3.  In 2004 she started cohabiting with her boyfriend but soon discovered that he was addicted to gambling and drinking, and when he was drunk he would be violent and abusive towards her.

4.  With a view to end their relationship, the Applicant in 2007 went to work in Baguio City, but when her boyfriend later begged for reconciliation and pleaded for her to resume their cohabitation in Alfonso, the Applicant agreed to do so, but after 5 days she found that he had not changed and that there was no hope for reconciliation, she then insisted to end their relationship, but her boyfriend became furious and threatened to kill her if she dared to do so, and it was only after he had left the house that she fled to Baguio City to continue with her work there before moving on to Manila in 2009 during which she had cut off all contact with her boyfriend.

5.  In 2012 she first came to Hong Kong to start working as a foreign domestic helper, returning to the Philippines only for holidays during which she heard that her former boyfriend was still looking for her everywhere, and when her last employment was terminated in November 2015, she was afraid to return to the Philippines and so she overstayed in Hong Kong, and after her subsequent arrest by the police, she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 7 August 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 6 September 2017 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”).

7.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her former boyfriend upon her return to the Philippines as low due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of him to seriously harm or kill her, that in any event it was a private domestic dispute between the two of them without any official involvement that state or police protection would be available to the Applicant if resorted to upon her return to the Philippines, 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 300,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of the country away from her home district in large cities such as Manila where it would be difficult if not impossible for her former boyfriend to locate her.

8.  On 20 September 2017 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 21 May 2018 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 31 August 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board accepted the Applicant’s evidence of her dispute with her former boyfriend over the ending of their relationship but found no evidence of any real intention of him to seriously harm or kill her when they had had no further contact for years, and that it was a private personal dispute between the two of them without any official involvement that state and 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 by her former boyfriend that her claim for non-refoulement protection failed on all applicable grounds.

10.  On 27 May 2021 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no proper ground for seeking relief was given in her Form or her supporting affidavit of the same date other than a vague and bare assertion that the decision was unreasonable and did not consider her claim properly but without any details or particulars or elaboration how it was so, nor did she request any oral hearing for her application.

11.  By then the Applicant was also seriously 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 day 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.

12.  As the last day of the three-month period for her to file her Form 86 fell on 31 November 2018, the Applicant was therefore some 2 ½ years 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.

13.  In the Applicant’s case, a delay of 2 ½ years must be considered as extremely substantial and inordinate, for which she did not provide any explanation in her Form or affidavit, and as the record shows that the Board’s decision was sent on the same day to her then reported address without being returned through undelivered post, I do not see any good or valid reason for her such serious delay.

14.  As for the merits, if any, of her intended application, as noted above the Applicant has also failed to put forth any proper ground for her intended challenge, and as such 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 merits in her intended application either.

15.  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.

16.  In the Applicant’s case, the fact is that it has also been correctly established by both the Director and the Board in their respective decision that the risk of harm in her claim is a localized one 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.

17.  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.

18.  Furthermore, the Applicant recently on 21 June 2022 filed an affidavit requesting to “cancel” her application as her problem in her home country has been resolved that she wants to return home as soon as possible.

19.  In the premises, as I am for the reasons given not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review or any good reason for her serious delay, and given her latest confirmation her problem has been resolved and that it is safe for her to return to her home country, I 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