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HCAL 1986/2023
[2024] HKCFI 291
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1986 of 2023
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Comilang Analyn Notorio |
Applicant |
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and
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
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Putative Respondent |
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and
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Director of Immigration
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Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge To:
1. Extension of time to apply for leave for Judicial Review be refused; and
2. The application for leave to apply for Judicial Review be refused.
Observations for the Applicant:
Introduction
1. This is the Applicant’s application by Form 86 filed on 6 November 2023 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 15 August 2017 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 4 August 2016 and 5 June 2017 (the “Notices”).
2. The leave application was filed more than six years and two months after the date of the Decision sought to be reviewed. Pursuant to section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, it was made more than five years and eleven months out of time. Leave to file the leave application out of time is required.
3. In AW and Director of Immigration and William Lam[1], the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.
4. Merits is usually a very important factor. Where the delay is not very substantial, merits is usually the determinant factor. But in Po Fun Chan v Winnie Cheung[2] the Court of Final Appeal held that where an applicant is many months out of time, leave may be refused “however strong the complaint might otherwise be”. The delay in this case is so substantial that in the absence of a reasonable explanation, leave may be refused on this ground alone.
5. The Applicant is a Philippine national. She last entered Hong Kong on 31 July 2012 to work as a foreign domestic helper. Her contract was terminated prematurely but she did not leave Hong Kong within the prescribed period. She overstayed and surrendered to the authorities on 26 November 2014. On 17 August 2015, she raised a non-refoulement claim. In due course, her non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[3]; BOR 3 Risk[4]; Persecution Risk[5]; and BOR 2 Risk[6]. Her claim was dismissed by the Director’s Notices. Her appeals against the Notices were dismissed by the Decision of the Board. She now applies for leave to apply for judicial review of that Decision.
The Applicant’s case
6. The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by her with legal assistance and the record of her screening interview in the presence of her lawyer. In gist, she claimed that she would be harmed by members of the Mendoza family upon her return because of the disputes between her husband’s family and the Mendoza family.
7. The Applicant, now aged 41, was born in Pasay City, the Philippines. After receiving 11 years of education, she worked as a domestic helper in the Philippines and as a foreign domestic helper in Hong Kong.
8. She lived with her husband’s family in Baguio City, the Philippines since 2003. They lived next to the Mendoza family which was said to be a powerful and influential family with members working in the government and the airport in the Philippines.
9. The two families had a land dispute and their members had minor altercations in the past. In around 2004, the Applicant’s husband stabbed a member of the Mendoza family with a knife and then went into hiding for six or seven months. Later, the Applicant, her husband and their children moved to Barangay for three years.
10. The Applicant and her family returned to her husband’s family house after her mother-in-law said she felt unsafe. On a day in 2008 after her return, the man who had been stabbed by her husband tried to attack her husband with an ice pick but he was stopped before anyone was injured.
11. The two families held a meeting at a municipal hall to try to resolve their land dispute. The Mendoza family threatened to resort to murder and her husband’s family claimed that they would fight them if needed. Later in 2008, a member from the Mendoza family shot the Applicant’s brother-in-law with a bow and the arrow grazed his nose. Her brother-in-law reported the matter to the barangay council. When the Mendoza family attended the council meeting, the two families fought and no follow up action was taken by the council.
12. In 2009, a boy from the Mendoza family threw a rock at the Applicant’s son. The Applicant argued with the boy’s mother and they had a fight.
13. The Applicant came to Hong Kong to work in 2009. She heard from her husband that the Mendoza family offered to buy the disputed land but her husband’s family declined the offer. While in Hong Kong, her husband suggested that she should separate from him to avoid being dragged into the conflict with the Mendoza family. Then she lost contact with her husband in 2011. In July 2012, she returned to the Philippines to look for her husband in their old home but could not find him.
14. In December 2013, the Applicant’s mother told her that her children had moved to another place to avoid the Mendoza family. Her mother told her it was unsafe for her to return to the Philippines because the Mendoza family had vowed to kill all members of her husband’s family.
15. The Applicant did not believe the Philippine police would help her because it was common for the police to ignore such complaints. She also claimed that she was being watched when she was transiting through an airport in the Philippines and that she feared the Mendoza family would be waiting for her the moment she lands in the Philippines.
The finding of the Board
16. The Applicant testified before the Board. While it is her case that her husband and their children went into hiding to avoid the Mendoza family, she was unable to answer the Board’s question as to why she, her husband and their children each maintained a publicly accessible Facebook page for the world to see; why her children sent messages to her over Facebook and why they made public posts on their own Facebook pages as recently as 2017.
17. The Board found the Applicant to be an incredible and exaggerating witness. It found she exaggerated the relationship problem she had with her husband and the disputes with the Mendoza family. It rejected her evidence that her husband had stabbed a member of the Mendoza family and went into hiding and that she and her family were under any threat from the Mendoza family. The Board found the Applicant had failed to establish the factual basis to support her claims for protection under any of the four applicable grounds under the USM and dismissed her appeal against the Director’s Notice.
The legal principles applicable to judicial review
18. The function of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[7]. Thus, absence specific grounds or grounds with sufficient particulars, the Court would focus its attention on possible criticism of the Decision on the basis of error of law, unreasonableness and irrationality.
Grounds for judicial review
19. The Applicant annexed a document titled "Grounds on which relief is sought" in her Form 86 advancing the following five grounds of application:
(1) The Decision was not reasonable and unfair; she must be protected from extra-judicial killings she may face, if refouled (Paragraphs 2 and 3 of the document).
(2) The Decision is unfair as the Director failed to give proper weight to the presence of state acquiescence (Paragraph 4 of the document).
(3) The Decision is unreasonable and procedurally unfair because the Director placed too much reliance on COI but failed to take the Applicant’s COI, personal background and experience into account (Paragraph 5 of the document).
(4) The Decision is unfair as the Director failed to take such arguments into account or give enough argument enough weight (Paragraph 6 of the document).
(5) The Decision is irrational because on the findings the Board should have allowed the appeal (Paragraph 7 of the document).
Whether to grant leave to file the leave application out of time
20. The leave application was filed more than five years and eleven months out of time. The Applicant gave no explanation for the very inordinate delay. At the hearing, the Court explored the reasons for the delay with her. Her explanations are vague, incomprehensible, confusing and contradicting. Initially, she said she had nothing to say. After being told that if she did not give any reasonable explanation her leave application will not be considered, she said she did not apply for review because she was afraid she would be held in custody by the Immigration Department and returned to the Philippines. If so, there was all the more reason for her to do something about the Decision.
21. Then, she said she had never received the Decision. She said she had informed the Immigration Department of her changes in address, but not the Board. She was only informed that her appeal had been dismissed when she was arrested by the Immigration Department on 16 October 2023. She said she lived in Tokwawan when she appeared before the Board. She could not recall when she moved out of that address and the various addresses she moved to. She had informed the Immigration Department of her new addresses, but not the Board. Then, she said she had not reported her recognisance for six years. That contradicts her earlier evidence that she had informed the Immigration Department of her changes in address.
22. The only consistent explanation she gave is that she had never received the Decision and did not know her appeal had been dismissed until she was arrested. She admitted she lived at the Tokwawan address when she appeared before the Board and when the Decision was delivered. She suggested that someone had taken away the Decision from the letter box. Then she moved out of that address and lived from place to place without reporting her recognisance for six years. Then she was arrested on 16 October 2023 and informed about the Decision. Hence, she made the leave application on 31 October 2023. This is only an explanation reconstructed from the confusing and contradicting explanations she gave which made some sense.
23. Having regard to the way this explanation evolved, the Court found this explanation not credible. It was obviously conjured in the course of the Court’s enquiries with her. The Applicant could offer no reasonable explanation for the inordinate delay. On this ground alone, leave to file the leave application out of time may be refused without considering the merits of the leave application.
Conclusion
24. For the above reasons, leave to file the leave application out of time and the application for leave to apply for judicial review are refused.
Dated 23rd day of January 2024.
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(Allen LEE)
for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 23/1/2024
Comilang Analyn Notorio
Applicant’s ref. no:
Nil.
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 23/1/2024
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 4436/16/8/155/F253
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 2113/15, RBCZ 9001761/17 (Formerly RBCZ 13214/15)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] CACV 63/2015 (unreported) 3 November 2015
[2] (2007) 10 HKCFAR 676 at 693B to C, per Litton NPJ
[3] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
[4] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)
[5] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol
[6] Risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383
[7] [2018] HKCA 524 at [14(1)]
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