EMELITA ARISTA v. TORTURE CLAIMS APPEAL BOARD

HCAL 879/2019

[2023] HKCFI 201

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 879 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 (counsel for) 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 31 July 2018 refused; and

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

Observations for the Applicant:

1.  The Applicant is a 62-year-old national of the Philippines who last arrived in Hong Kong in 2006 as a visitor but she did not subsequently depart and instead overstayed, and was arrested by police more than 10 years later on 19 February 2017. 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 cousin over some land dispute in her home village many years ago. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born in Sta. Mesa, Manila, the Philippines and raised in Vigan, Ilcos Sur, the Philippines. After leaving school she worked as a saleslady, and in 1999 came to Hong Kong to work as a foreign domestic helper, during which she heard from her sisters in the Philippines that their cousin Ruel, the son of her father’s elder sister, had raised issues with their father over the title of some land which he had inherited from their grandfather that had led to a fight between them.

3.  In 2003 when the Applicant returned to the Philippines for holiday, during which she confronted Ruel over the land dispute when Ruel made threats against her.

4.  In 2003 the Applicant completed her employment in Hong Kong and returned to her home in the Philippines, and after her father passed away in 2006, Ruel threatened the Applicant to give up her share in the land to him. Fearing for her own safety, the Applicant fled from her home village to take shelter in a friend’s place in Manila, and later in the same year she departed for Hong Kong where she overstayed, and after her subsequent arrest by the police more than 10 years later in 2017, she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 13 July 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 9 August 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”).

6.  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 Ruel 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 reliable evidence of any real intention of him to seriously harm or kill the Applicant, that in any event it was a private land disputes between them within the family 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 100 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 or Quezon City where it would be difficult if not impossible for Ruel to locate her.

7.  On 25 August 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 28 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 July 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board accepted the Applicant’s evidence as to her dispute with Ruel but found no evidence of any real intention of him to seriously harm or kill her over their land dispute in particularly when the land has since been vested in another sister of the Applicant when there would no longer be any reason for Ruel to go after the Applicant, and that in any event it was a private dispute within the family without any official involvement that state or police protection would be available to the Applicant upon her return to the Philippines to negate any further risk of harm from Ruel that her claim for non-refoulement protection failed on all applicable grounds.

9.  On 1 April 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 in her supporting affirmation of the same date to which she merely attached a copy of the decision but without putting forth any proper ground for her intended challenge, nor did she request any oral hearing for her application.

10.  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.

11.  As the last day of the three-month period for her to file her Form 86 fell on 31 October 2018, the Applicant was therefore some 5 months 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.

12.  In the Applicant’s case, a delay of 5 months must be considered as very substantial and inordinate, for which she did not provide any explanation in her Form or affirmation, and as the record shows that the decision was sent on the same day to her last reported address without being returned through undelivered post, I am unable to see any good reason for her serious delay.

13.  As for the merits, if any, of her intended application, as noted above the Applicant has failed to put forward any proper ground for her intended challenge, 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.

14.  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.

15.  In the Applicant’s case, the fact is that it has also been established by the Director in his decision that the risk of harm in her claim if still exists is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of the Philippines, a decision also confirmed by the Board, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

16.  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 Applicant’s claim.

17.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for her serious delay, 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