NAVARRO MYLENE RODRIGUEZ AND OTHERS v. TORTURE CLAIMS APPEAL BOARD

HCAL 2583/2018 and
HCAL 393/2022
(Consolidated)

[2024] HKCFI 740

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2583 of 2018

AND

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo 393 OF 2022

(Consolidated pursuant to the Order of
Deputy High Court Judge Bruno Chan dated 12 March 2024)

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 the 1st to 4th Applicants in HCAL 2583/2018 and the Applicant in HCAL 393/2022 (collectively “the Applicants”) being absent in open court;

1.  HCAL 393/2022 be consolidated with HCAL 2583/2018; and     

2.  Leave for the Applicants to apply for Judicial Review be refused.

Observations for the Applicant:

1.  In the first application under HCAL 2583/2018 the 1^st Applicant (“A1”) is the mother of the 2^nd, 3^rd and 4^th Applicants (“A2”,  “A3” and “A4”) who jointly seek leave to apply for judicial review of a decision of the Torture Claims Appeal Board (“Board”) which rejected their appeal/petition regarding their torture risk under Part VIIC of the Immigration Ordinance, Cap. 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Hong Kong Bill of Rights Ordinance, cap. 383 (“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 Statue of Refugees (“Persecution Risk”), while in the second application under HCAL 393/2022, A2 is the only applicant for leave to apply for judicial review of the Board’s subsequent decision which rejected her appeal/petition regarding risk of her absolute and non-derogable rights under HKBOR being violated including right to life under Article 2 (“BOR 2 Risk”), but given the Applicants’ relationship and the common bases of their claims which were dealt with by the same Board, I decided that it would be appropriate for the 2 applications to be consolidated for hearing together, and accordingly so ordered.

A1’s Non-refoulement Claim        

2.  A1 is a 47-year-old national of the Philippines who last arrived in Hong Kong on 10 July 2010 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract or within 14 days of its early termination, but when her last employment was prematurely terminated on 11 August 2010, she did not depart and instead overstayed, and was arrested almost 3 years later on 27 May 2013 for which she was subsequently convicted and sentenced to prison for 2 months.  After she was discharged from prison and was referred to the Immigration Department for deportation, 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 and cohabitant Roger over their various domestic disputes.  She was subsequently released on recognizance pending the determination of her claim.

Factual Backgrounds of the Applicants

3.  A1 was born and raised in Barangay De Guzman, Mabini of Pangasinan, the Philippines.  After leaving school she dated her former schoolmate Roger who worked as a janitor in a hospital, and in 1998 they started to cohabit together in Quezon City where they raised a family with 3 children: A2 a daughter born on 21 February 2002 and now aged 22, A3 a son born on 6 April 2004 now aged almost 20, and A4 a daughter born on 24 June 2005 now aged 18.

4.  During the cohabitation the relationship between A1 and Roger was volatile due to his affairs with other women which led to frequent quarrels between them during which Roger would become abusive and violent towards A1 by hitting her at will, but of which she never made any report to the police or sought their assistance.

5.  In 2006 they placed their children in the care of A1’s mother in Pangasinan and went to work in Macau with A1 as a domestic servant and Roger as a carwash worker.

6.  In 2007 A1 returned to the Philippines to apply to work as a foreign domestic helper in Hong Kong, and accordingly in November 2007 she arrived in Hong Kong to start her first employment contract.

7.  Later in 2008 Roger also returned to the Philippines to stay with their children in Pangasinan, whereupon A1 remitted money to him to enable him to purchase a tricycle to make his living by transporting passengers and goods.

8.  In 2009 A1 returned to the Philippines for her holiday during which she discovered that Roger was again having an affair with another woman and decided to put an end to her relationship with Roger and demanded for the return of her properties including the tricycle, but Roger refused and instead threatened to kill her, and so A1 returned to Hong Kong to continue with her employment.

9.  In 2010 A1 returned to the Philippines on holiday and again demanded Roger to return her properties, and again Roger refused and threatened to kill her if she insisted with her demand, and when she was unable to enlist any assistance from the police who treated their dispute as a private matter between them, A1 therefore returned to Hong Kong on 10 July 2010 to resume her employment, but when it was subsequently terminated she did not return to the Philippines and instead overstayed in Hong Kong since 11 August 2010, and was arrested almost 3 years later on 27 May 2013 for which she was subsequently convicted and sentenced to prison for 2 months.               

10.  Upon her discharge from prison and was referred to the Immigration Department for deportation, A1 then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 17 November 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

Director’s Decision on A1’s Claim under Risks of Torture, BOR 3 and Persecution            

11.  By a Notice of Decision dated 19 January 2015 the Director of Immigration (“Director”) rejected A1’s claim on all then applicable grounds including torture risk,  BOR 3 risk and persecution risk upon taking into account of all the relevant circumstances of her claim and assessing the level of her being harmed or killed by her former boyfriend Roger 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 Roger to seriously harm or kill her other than to stop her from pressing her demand for the return of her properties, that in any event it was a private domestic or property dispute between the 2 of them without any official involvement that state or police protection would be available to A1 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 97 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 areas of the country away from her home district in large cities such as Manila where it would be difficult if not impossible for Roger to locate her.

Non-refoulement Claims of A2, A3 & A4

12.  Some 3 months after the Director’s decision on 17 April 2015, A1’s 3 children, A2, A3 and A4, then respectively aged 13, 11 and 10, arrived in Hong Kong as visitors with permission to remain as such up to 1 May 2015 when they did not depart and instead overstayed, and on 14 May 2015 in the company of A1 they surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if they returned to the Philippines they would be harmed or killed by A1’s creditors over her outstanding debts which A1 earlier in 2010 borrowed from a couple in her home district in the Philippines for her expenses for extending her employment in Hong Kong but which A1 subsequently failed to repay in late 2014, and for which her creditors had threatened to kill her and her children, and so in January 2015 A1 moved her mother and the children to stay with a friend in Batangas to avoid her creditors, but in April 2015 when the friend was no longer able to accommodate her children, A1 therefore arranged for them to leave the Philippines on 17 April 2015 for Hong Kong and then raised a non-refoulement claim for them, for which A1 completed a NCF for her children on 13 January 2016 and attended a screening interview before an immigration officer with legal representation from DLS.

13.  By a Notice of Decision dated 25 February 2016 the Director also rejected her children’s claims on all then applicable grounds including torture risk, BOR 3 risk and persecution risk after taking into account all the relevant circumstances of their claims and upon assessing the level of them being harmed or killed by their father Roger or their mother’s creditors upon their return to the Philippines as low due to the absence of or low intensity and frequency of past ill-treatment by Roger or the creditors as indicative of a small future risk of harm from either of them, that there is no evidence of any real intention of them to seriously harm or kill them other than to press their mother to yield to their demands, that in any event these were private domestic or monetary disputes between their parents or their mother’s creditors without any official involvement that state or police protection would be available to A2, A3 and A4 if resorted to, and that relevant COI show that sufficient supports and assistances from relevant government departments and NGOs would also be available to them if needed as well as reasonable internal relocation alternatives within the Philippines with a large population of 101 million people spread across a vast territory of more than 300,000 square kilometers that it would not be unduly harsh for them to safely move with their mother as an able-bodied adult with working experience to other parts of the country away from their home district in large cities such as Manila where it would be difficult if not impossible for Roger or their mother’s creditors to locate them.

Board’s Decision on Applicants’ Claims under Risks of Torture, BOR 3 and Persecution             

14.  On 2 February 2015 and 3 March 2015 A1 lodged their appeals to the Board against the respective decisions of the Director, and for which they jointly attended an oral hearing on 13 June 2016 before the Board during which they declined to give any oral evidence after confirming their reliance of all the information and materials already provided to the Director and contained in the hearing bundle available before the Board.  On 15 June 2017 their appeals were dismissed by the Board which also confirmed the Director’s decisions.

15.  In its decision the Board found A1’s claim was based purely on a domestic dispute between her and Roger in which she did not sustain any serious injury and that there was not the slightest indication that Roger intended any serious harm on her or any evidence which warranted non-refoulement protection, and that in any event police protection would be available to her upon her return to the Philippines as well as reasonable internal relocation for her to move to other parts of the country away from her home district without any risk of being located by Roger that her claim for non-refoulement protection failed on all applicable grounds.

16.  As for her children’s claims, the Board found material inconsistencies and discrepancies in A1’s evidence as to risk of harm from her creditors which she never raised in the materials in support of her own claim made to the Director that it doubted the credibility of her children’s claims of fear of harm from Roger or the creditors that caused them to leave their home country to come to Hong Kong to seek protection, while there is simply no evidence of any intention of Roger to harm his own children, and that in any event even if such risks were real that they arose from some private domestic or monetary disputes between their parents and their mother’s creditor without any official involvement that state or police protection and supports from relevant government departments and NGOs would similarly be available to them upon their return to the Philippines as well as reasonable internal relocation for them to move safely with their mother to other parts of the country away from their home district without any risk of being located that their claims for non-refoulement protection also failed on all applicable grounds.

Director’s Further Decision on BOR 2 Claim of A1    

17.  Meanwhile on 4 May 2017 the Director on his own initiative invited A1 to submit additional facts which she may consider relevant to her non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute and non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”), and after receiving no response from her, by a Notice of Further Decision dated 30 June 2017 the Director also rejected A1’s BOR 2 Claim upon finding that she had failed to establish a personal and real risk of her absolute and non-derogable rights under HKBOR including right to life under BOR 2 being violated upon her return to the Philippines.

Director’s Further Decision on BOR 2 Claim of A2, A3 & A4

18.  Similarly on 6 June 2017 the Director also invited A1 to submit on behalf of her children any additional facts which they may consider relevant to their non-refoulement claims on all applicable grounds for non-refoulement protection including any other absolute and non-derogable rights under HKBOR including right to life under BOR 2 risk, and after receiving no response from them, the Director by a Notice of Further Decision dated 30 June 2017 also rejected their BOR 2 Claim upon finding that they had failed to establish a personal and real risk of their absolute and non-derogable rights under HKBOR including right to life under BOR 2 being violated upon their return to the Philippines.

Board’s Decision on BOR 2 Claims of A2, A3 & A4

19.  A1 then lodged an appeal for her children but not for herself to the Board against the Director’s Further Decision in rejecting their BOR 2 Claims, and by a Decision dated 2 November 2018 the Board also rejected their appeals upon finding that the BOR 2 ground simply would not apply to their claims in the absence of any relevant additional facts and on the factual basis of even their own case, and confirmed the Director’s Further Decision. 

Application for Judicial review under HCAL 2583/2018   

20.  On 16 November 2018 A1 filed a Form 86 for leave to apply for judicial review of both decisions of the Board, and while she did not name any of her children in the Form, since both decisions also concerned them I see no reason why she would not have included them other than some unintended omission and propose to treat the application as one also for A2, A3 and A4, but no proper ground for seeking relief was given in the Form or in A1’s  supporting affirmation of the same date to which she just attached the entire hearing bundle for their appeals before the Board but without putting forth any proper ground for their intended challenge, nor did A1 or any of her children attend the subsequent scheduled hearing without any explanation.  As such and in the absence of any error of law or irrationality or procedural unfairness in their processes before the Board or in its decisions being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis for their intended challenge.

Application for Judicial review under HCAL 393/2022

21.  Some 3 ½ years later on 26 May 2022, A2, by then aged 22 and already an adult, filed another Form 86 for leave to apply for judicial review of the second decision of the Board in rejecting her BOR 2 Claim, and similarly no ground for seeking relief was given in her Form or her supporting affirmation to which she just attached a copy of the decision but without putting forth any proper ground for her intended challenge.

22.  Even putting aside the fact that I have already included A2 in her mother’s earlier application for judicial review of the Board’s decision, this second application was by then seriously out of time, 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 to extend the period within which the application shall be made.

23.  As the last day of the three-month period for her to file her Form 86 fell on 2 February 2019, A2 was therefore more than 3 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.

24.  In the case of A2, a delay of more than 3 years must be considered as extremely substantial and inordinate, for which she did not provide any explanation or reasons in her Form or affirmation, nor did she attend the subsequent scheduled hearing of her application without explanation.  As such I do not see any valid reason or justification for her such serious delay.

25.  As for the merits, if any, of her intended application, as already noted that A2 has failed to put forth any proper ground for her intended challenge, and given the factual basis of even her own case that simply would not engage the BOR 2 ground in view of its limited scope, I am unable to find any merits at all in her intended application either.    

26.  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.

27.  In the Applicants’ case, the Board dismissed their claims for the thorough and detailed analysis and reasoning set out in both decision based on the information and materials provided by them to the Director and in their appeal bundle available to the Board of which they declined to further elaborate with any oral evidence to the Board, while on the factual basis of even their own case at the highest that their claims simply did not engage the BOR 2 ground in view of its limited scope.  As such, and in the absence of any error of law or procedural unfairness in their process before the Board or in its decisions being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis to challenge the findings of the Board in either decisions.

28.  Furthermore, the fact is that it has also been correctly established by both the Director and the Board in their decisions that the risks of harm in the Applicants’ claims if real are localized ones and that it is not unreasonable or unsafe for them to relocate to other part of the Philippines, there is simply no justification to afford any of them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

29.  I am of course mindful of the fact that all the children were then minors in their teens during their appeals before the Board without legal representation, although by now in their present applications before the Court they have all reached 18 and hence Order 80 rule 2 of the RHC no longer applies, that their non-refoulement claims must be considered separate from their mother’s claim by the Board having regard to their personal circumstances, and that the Court needs to be satisfied that the Board had achieved high standards of fairness in dealing with their claims and that there is no underlying matter that may support minor-specific non-refoulement grounds which had not been advanced before the Board due to lack of legal representation: see Fabio Arlyn Timogan [2020] HKCA 971.

30.  As noted above that the basis of their claims were in fact different from that of their mother, of which the Board clearly alluded to in its decisions and did consider the claims of A2, A3 and A4 separately from that of A1, and given the fact that they were all born and raised in the Philippines where they are clearly citizens, on the factual basis of their claims I do not find any underlying minor-specific non-refoulement ground in each of their case such as racial ethnical or religious factors which could have been advanced to the Board but not due to lack of legal representation in their appeals before the Board, or that the Board had failed in any way to apply high standards of fairness in its consideration of each of their claims.                        

31.  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 Applicants’ claims.

32.  In the premises, as I am for all the given reasons not satisfied that there is any prospect of success in the Applicants’ intended applications for judicial review, I refuse to grant leave and accordingly dismiss both their leave applications.

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