URGEL NARCISA ANADIA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL664/2018

[2019] HKCFI 204

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 664 of 2018

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s Decision (Ord. 53 r. 3)

Following:

	consideration of documents only
	consideration of documents and oral submission by the Applicant in open court

(1)      Extension of time for application for leave to apply for judicial review of the decision of Torture Claims Appeal Board dated 14 July 2017 be refused; and

(2)      Application for leave to apply for judicial review be dismissed.

It is further directed that:

(1)   If the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, she must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

(2)   When filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of no more than 5 pages in support of the application for leave to appeal;

(3)   The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

(4)   If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

(5)   Liberty to apply.

Observations for the Applicant

Background

1.  The Applicant is a national of the Philippines. She is now aged 50 (DOB: 10 January 1969).

2.  The Applicant claimed she would be harmed or killed by the gangsters of a drug syndicate in her country and also by her ex-cohabitee Ronnie.

3.  The Applicant claimed she met Ronnie in 1997. She later gave birth to a son for Ronnie.

4.  In 1998, the Applicant worked for a drug syndicate as pusher to earn money for a living. It was a powerful group protected by officials. The Applicant said the gang even had the blessing of the President of the country. It had extensive network and connection. The Applicant said she had seen officials from the National Bureau of Investigation being involved in the drugs activities. She was told that she would enjoy protection if she was caught by the police.

5.  In 1999, the Applicant told her boss that she wanted to leave the gang. Her boss warned her she would be killed if she tried to leave. The Applicant then planned to leave the country.

6.  The Applicant alleged that in late 1999 she also worked as a police informant while working for the drug syndicate. The Applicant last encountered her gang mates in December 1999.

7.  In January 2000, the Applicant left the Philippines for Hong Kong to work as domestic helper. She soon learnt the information she had given to the police as informant led to the arrest of some gang members. Her friend in the gang Maria said the boss was looking for her. The Applicant also learnt from her family members in the Philippines that there were strangers appearing around their house. There were also strangers enquiring her whereabouts. The Applicant suspected those people were members of the gang.

8.  In 2006, the Applicant lost contact with Maria. However, she learnt from her father that some people were still looking for her. The father did not know who those people were.

9.  The Applicant did not see her cohabitee Ronnie again since she had left the Philippines in 2000. She had never gone back there since then. However, in May 2010 she learnt from Ronnie that he had another woman and the woman had a baby. Ronnie threatened to kill the Applicant if she would cause him troubles.

10.  Ronnie continued to threaten the Applicant that he would kill her. The Applicant learnt from her mother that Ronnie stopped his threat in December 2010.

11.  In August/September 2011, the Applicant was told the head of her gang ‘Big Brother’ had been released from the prison. There were some mysterious people spying around her house in the Philippines and checking on her whereabouts. The Applicant learnt those people told her neighbours that she had betrayed their gang leader.

12.  The Applicant said there was corruption in the Philippines. She did not think her life would be protected by the authorities. She also said she lacked the means to relocate herself to other parts of the country. The gang members could find her.

13.  The Applicant was arrested in Hong Kong on 23 May 2010 after she had overstayed here for ten years from 13 May 2000. She raised a torture claim[1] on 9 June 2010. The Director of Immigration (“the Director”) rejected her torture claim on 20 January 2012. There was no information the Applicant had appealed against that decision.

14.  The Applicant lodged a non-refoulement claim in October 2013. The Director and the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”) respectively refused the Applicant’s claim with respect to the remaining three applicable grounds: (i) risk of persecution,[2]  (ii) risk of torture or cruel, inhuman or degrading treatment or punishment (BOR3 risk)[3]  and (iii) risk of violation of the right to life (BOR2 risk)[4].

15.  On 18 April 2018, the Applicant applied for leave for judicial review.

Timeline

16.  Things happened in this order: –

2000-1-22	The Applicant came to Hong Kong to work as domestic helper. Her employment contract was prematurely terminated in February 2000. She applied for extension to stay. She was last permitted to stay until 12 May 2000.
2000-5-13	The Applicant began overstaying here.
2010-5-23	The Applicant was arrested by the police.
2010-6-9	The Applicant lodged a torture claim.
2012-1-20	The Director refused the Applicant’s torture claim.
October 2013	The Applicant raised a non-refoulement claim.
2016-8-16	The Director refused the Applicant’s claim with respect to these two applicable grounds: persecution risk and BOR3 risk. [‘the Director's decision”]
2017-4-26	The Director invited the Applicant to submit additional facts for the consideration of BOR2 risk.
2017-5-10	The Applicant failed to submit additional facts by the deadline or thereafter.
2017-5-11	The Applicant was absent from the Board hearing.
2017-5-12	The Director refused the Applicant’s claim with respect to the last applicable ground: BOR2 risk. [‘the Director's further decision”]
2017-7-14	The Board refused the Applicant's claim with respect to these three applicable grounds: persecution risk, BOR2 risk and BOR3 risk. [“the Board’s decision”]
2018-4-18	The Applicant applied for leave for judicial review.

Respondent/Interested party

17.  The Unified Screening Mechanism is a two-tier process. The Director screens an applicant’s non-refoulement claim first; the applicant may appeal to the Board which deals with his/her complaint on a rehearing basis.

18.  In Re Moshsin Ali, the Court of Appeal ruled “the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”[5]

19.  In Form 86, the Applicant named the Board as respondent and the Director as interested party. The Board is the putative respondent; the Director is the putative interested party. 

The Director's decision

20.  On 20 January 2012, the Director rejected the Applicant's torture claim. There was no evidence the Applicant had appealed against that decision.

21.  The Applicant raised a non-refoulement claim in October 2013.

22.  In his decision dated 16 August 2016, the Director did not accept the Applicant faced any persecution risk or BOR3 risk. He also considered reasonable state protection and internal relocation were available to the Applicant in any event.

23.  In his further decision dated 12 May 2017, the Director did not accept the Applicant faced any BOR2 risk.

The Board's decision

24.  The Applicant appealed to the Board. The hearing was scheduled for 11 May 2017. The Applicant was absent without excuse.[6]

25.  The Adjudicator considered the Applicant had not responded to the Director’s request dated 26 April 2017 for additional facts. The Adjudicator did not find it necessary to hold further hearing in relation to BOR2 risk.[7]

26.  The Adjudicator accepted there was a relationship between the Applicant and Ronnie but Ronnie had stopped threatening the Applicant since late 2010.

27.  The Adjudicator also accepted the Applicant had worked as a drug pusher. However, there was no evidence that the Applicant had ever been ill-treated by the gang members, not to mention ill-treatment reaching a minimum level of severity. There were no state actors in the complained situation. It was not on account of Convention reasons (race, religion, nationality, membership of a particular social group or political opinion). The Applicant had never complained to the Philippines police or authorities. There was no evidence of any state involvement or acquiescence. The Adjudicator did not accept the Philippines authorities could not afford reasonable state protection to the Applicant. She also found internal relocation was viable in the Applicant's case.

28.  The Adjudicator found the Applicant faced no persecution risk, BOR2 risk or BOR3 risk. On 14 July 2017, she refused the Applicant’s appeal with respect to those three applicable grounds.

Grounds of judicial review

29.  The Applicant complained the Adjudicator unlawfully fettered her discretion; acted in a procedurally unfair manner; rendered unreasonable or irrational decisions; failed to meet the greater care and duty owed to a self-represented claimant.

30.  The Applicant complained the appeal bundle was served on her only seven days before the appeal hearing. She could not prepare the appeal in time as she was unrepresented and had difficulty to find someone to translate the English documents for her understanding. She was confused of what happened.

31.  The Applicant also complained the Adjudicator relied on outdated cases and information not officially recognised or simply hearsay.

Court hearing

32.  The hearing took place on 24 July 2018. The Applicant was in person. A Tagalog interpreter provided service in court.

33.  The Applicant said someone helped her to prepare Form 86 and the affirmation. All the grounds of judicial review were in the affirmation. She had nothing to add to those grounds.

34.  The Applicant was late in her application for leave for judicial review. She gave no reason in her affirmation or Form 86. In court, she explained she did not receive the Board's decision sent to her address. She said the mails in her building were always in a mess. She only got notice of the Board's decision in April 2018 when she reported to the Immigration Department, though she had to report there every two weeks. Being aware of the Board's decision, she asked around for assistance and filed the current application for leave for judicial review on 18 April 2018.

Discussion

35.  Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

36.  A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant.  Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[8]  Nevertheless, it is said in Re Islam Rafiqul: –

“The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision-makers are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.” [9]

Late application for leave for judicial review

37.  Order 53 Rule 3(1) of the Rules of the High Court reads: –

(1)  No application for judicial review shall be made unless the leave of the Court has been obtained in accordance with this rule.

38.  Order 53 Rules 4(1) and (2) of the Rules of the High Court read: –     

(1)  An application for leave to apply for judicial review shall 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. (L.N. 356 of 1988)

(2)  Where the relief sought is an order of certiorari in respect of any judgment, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgment, order, conviction or proceeding.

39.  It is clear from these provisions that no application can be made after the three-month period unless the Court considers that there is a good reason for extending time.  The Applicant must provide good reasons for the Court to give an extension of time. It is a pre-requisite in late application for leave for judicial review.[10]  If the court is not satisfied that there is a good reason for extending time, then no application for judicial review can be made in accordance with Rule 4(1).  In that event, the Court should not proceed to consider if leave should be granted or refused on other grounds.[11]

40.  In the present case, the Board’s decision was issued on 14 July 2017. The Applicant only applied for leave for judicial review nine months later on 18 April 2018. Excluding the 3-month grace period for filing, she was still six months late.

41.  The Applicant said she had not received the Board's decision sent to her reported address in July 2017. She said the mails in her building were always messy. She had to report to the Immigration Department every two weeks. Yet the Immigration Department only informed her of the result nine months later in April 2018.

42.  The Board's decision was sent to the Applicant in July 2017. There was no evidence of undelivered or returned mail. The Applicant complained the mails in her building were messy and she learnt of the Board's decision only in April 2018 from the Immigration Department staff. The Applicant raised such bare assertion only in court when she was asked why she was late in her application for leave for judicial review. Nothing of that was stated in her affirmation or Form 86. I do not accept the Applicant's explanation for her lateness.

43.  The Applicant was late in her application for leave for judicial review by six months. There was no good reason for the delay, which was undue and substantial. The prejudice that would be caused to the putative respondent would not be insignificant. Discipline should be maintained in the area of public law. The Applicant's application for leave for judicial review involved no issues of general importance and her argument had no merits at all (see below).

44.  The Applicant mentioned she did not have legal representation after the Director's decision dated 16 August 2016.

45.  The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings.[12] The Applicant failed to show how her case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.

46.  The Applicant raised her language problem. In the current application, someone helped her to prepare Form 86 and the affirmation. Apparently, the Applicant could find someone to assist her with interpretation/translation and dealing with English documents at all material times. Furthermore, the Applicant was assisted by qualified interpreters while she was still represented by the Duty Lawyer Service and during the screening process before the Director. [The Applicant chose to be absent from the appeal hearing before the Adjudicator.] The Applicant had much exaggerated her language problem.

47.  The Applicant complained she got the appeal bundle late so she could not prepare well for the hearing. However, the Applicant did not present herself in the appeal hearing scheduled for 11 May 2017.  There was no evidence that her absence from the Board hearing was inadvertent or related to her alleged prejudice in preparation.

48.  I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for her finding, conclusion and decision which were not Wednesbury unreasonable. She made no errors of law and there was no procedural unfairness. The Applicant had been given reasonable and sufficient opportunities to state and elaborate her case before the Director. The Applicant chose to be absent from the appeal hearing before the Board. Nevertheless, the Adjudicator considered the Applicant's claim carefully. The Adjudicator was acquainted with the facts and applied the law correctly. She had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim. None of the Applicant's complaints is substantiated.

Conclusion

49.  The Applicant's application for leave for judicial review is unreasonably late. There are no justified circumstances to oblige the court to consider her late application. I therefore dismiss the 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