EREJER MARIBEL ESTILLANA v. TORTURE CLAIMS APPEAL BOARD

HCAL 411/2024

[2024] HKCFI 3287

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 411 OF 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 oral submissions by 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 54-year-old national of the Philippines who last arrived in Hong Kong on 17 April 2018 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 10 October 2022, she did not depart and instead overstayed, and was arrested by police on 11 October 2022 for theft for which she was subsequently convicted and sentenced to prison for 8 months, during which she raised a non-refoulement claim for protection to the Immigration Department on the basis that if she returned to the Philippines she would be harmed or killed by her creditor over her unpaid debts.

2.  The Applicant was born and raised in Sorsogon Town, Sorsogon District, the Philippines. After leaving school she worked as a domestic helper in various countries, and in 2010 she started coming to Hong Kong to work as a foreign domestic helper.

3.  In September 2020 she borrowed a loan from a local money-lender in her home district in the Philippines to meet her mother’s medical expenses, for which she would remit money to her sister in the Philippines every month to repay her creditor by instalments.

4.  However, after her last employment was prematurely terminated on 10 October 2022, she was unable to repay her loan, and when her creditor started sending men to her home in the Philippines to look for her and with threats made to her sister, the Applicant was afraid to return to the Philippines and therefore overstayed in Hong Kong and subsequently raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 3 January 2023 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 28 February 2023 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 found no substantial grounds for believing that there will be any real and substantial risk of her being harmed or killed by her creditor and followers upon her return to the Philippines due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of her creditor to seriously harm or kill her other than to press her to repay her debts, that in any event it was a private monetary dispute between her and her creditor only without any official involvement that state or police protection would be available to the Applicant 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 114 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 Iloilo City or Cebu where it would be difficult if not impossible for her creditor to locate her.

7.  On 17 March 2023 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended 2 oral hearings on 21 August 2023 and 9 October 2023 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 13 October 2023 her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of her claim of fear of harm from her creditor over her unpaid debts that caused her to overstay in Hong Kong to seek protection, that even if her claimed fear of harm from her creditor were real that there was no reliable evidence of any real intention of the creditor to seriously harm or kill her other than to press her to repay her debts, and that in any event it was a private monetary dispute between the 2 of them only without any official involvement that state or police protection would be available to the Applicant upon her return to the Philippines that her claim for non-refoulement protection failed on all applicable grounds.

9.  On 5 March 2024 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her supporting affirmation of the same date she just put forth some bare and vague assertions that she was not given sufficient time to prepare for her appeal before the Board, that the Adjudicator did not ask her any question, and that the interpreter was not helpful, but without providing any further relevant or necessary details or elaborations as to how these were so.

10.  By then the Applicant was also 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 to extend 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 13 January 2024, the Applicant was therefore more than 7 weeks 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 more than 7 weeks must be considered as substantial and inordinate, for which she did not provide any explanation in her Form or supporting affirmation, and as the record shows that the decision was sent on the same day of 13 October 2023 to her then reported address without being returned through undelivered post, I am unable to see any good or valid reason for her such substantial delay.

13.  As for the merits, if any, of her intended application, as noted above that the Applicant has only put forward bare and vague assertions without any necessary or relevant details or particulars or elaboration in corroboration, while the fact is that she was given not just one but two oral hearings before the Board during which she never raised any issue over insufficient time to prepare for her appeal, and that she was able to make full and proper representation of her case to the Board and ably assisted by an interpreter. As such, and in the absence of any relevant details or elaboration from the Applicant, I do not find any of such bare assertions reasonably arguable for her intended challenge or any merits in her intended application.

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 Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing her in her oral evidence and answers to questions raised of her claim in not just one but two hearings, and in the absence of any error of law 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 reasonably arguable basis to challenge the finding of the Board.

16.  Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim even if real 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 agreed and 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.

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.  Moreover, the Applicant recently on 20 September 2024 in writing requested to withdraw her application as her problem in her home country has been solved and that it is now safe for her to return to the Philippines.

19.  In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of her latest confirmation 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