LACDO O MERLY ORTIZO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2646/2019

[2025] HKCFI 2915

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2646 of 2019

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

Following;

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

1.  Extension of time to file the application for leave to apply for Judicial Review (“Form 86”) be refused; and

2.  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 11 September 2019 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 13 March 2019 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 9 October 2018 (the “Notice”), refusing her application for non-refoulement protection.

Explanation for the late application

2.  The leave application was filed almost 6 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, the leave application was lodged three months and 16 days out of time.  Extension of time to apply 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.  Usually, the first three factors, particularly merits, are most crucial and determinative. If the sum total of these three factors are in favour of grant of extension, the court could be more relaxed in the remaining two.  Conversely, if it is against the grant of extension, there is no need to consider the remaining two factors.  However, where an application is many months out of time, leave may be refused “however strong the complaint might otherwise be”, see Po Fun Chan v Winnie Cheung[2], per Litton PJ.

4.  Despite clear warning in the Form 86 that an applicant is required to state his grounds for application and reasons for delay, if any, the Applicant provided neither.  At the hearing, the Court explored the reason for the delay with her.  She did not dispute receipt of the Decision or claimed late delivery.  Despite repeated attempts, all that she could say was that she had no idea what to do with the Decision and she just waited.  She has no explanation for the delay.  The delay in this case is so substantial that leave may be refused on this ground alone without considering the merits of the substantive application.  However, erring on the side of caution, the Court nevertheless proceeded to examine merits of her application.

Background

5.  The Applicant is a national of the Philippines, now aged 45.  She had previously came to work in Hong Kong as a foreign domestic helper in November 2013.  She returned to the Philippines after working for one month.  Shen then came again on 18 May 2014 to start her second employment.  She was dismissed shortly.  She did not leave and attempted to look for another employer.  She overstayed since 2 June 2014.  She surrendered to the Immigration Department on 23 October 2017 more than three years later.  On 19 January 2018, she filed a non-refoulement  claim.  In due course, her non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk^[3]; BOR 3 Risk^[4]; Persecution Risk^[5]; and BOR 2 Risk^[6]. Her claim was rejected by the Director’s Notice.  Her appeal against the Notice was dismissed by the Board’s Decision.  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 based on the information in the non-refoulement claim form prepared by her with legal assistance and the record of her screening interview in the presence of her lawyer.  In gist, she claims that if returned to the Philippines, she will be harmed or killed by her ex-boyfriend because she reported his drug activities to the police.

7.  The Applicant claimed that she knew her ex-boyfriend around March 1993 and started dating in 1994.  In 2002, she went to his home for his birthday celebration.  She was shocked when she found him sniffing drugs.  She confronted him but he denied. She suggested breaking up because of his drug activity.  He warned her aggressively not to report the matter to the police and told her to leave right away.  She was in fear. 

8.  About one week later, her ex-boyfriend asked her to send a package to one of his friends.  He refused to tell her what was inside the package.  He denied it was drugs, but refused to open the package. Thus, the Applicant refused to deliver.  On another occasion, his ex-boyfriend made a second request.  This time, the Applicant reported to the police.  The police arrested his ex-boyfriend for possession of drugs in 2005 and he was convicted of a drug offence in 2006. 

9.  After her ex-boyfriend had been sent to prison, his parents called her to go to their home for discussion.  They complained that she should have told them what happened instead of reporting the matter to the police as he was the bread-winner of the family.  They were angry.  During that meeting, one of his ex-boyfriend’s friend, who was the supposed recipients of the package, arrived.  She overheard that friend said to her ex-boyfriend’s father that if the Applicant were to report them to the police, they would kill her.  She was kicked out of the parents’ home, and told not to show her face to them anymore.  She was scared.

10.  Whilst in Hong Kong, the Applicant learnt from her sister’s friend who had seen her ex-boyfriend after his released from jail that he was trying to locate her through her friends.  In about 2016, he went to her mother’s home and told her mother that he would kill her as he wanted to revenge on her for reporting him to the police.  The Applicant was still afraid of her ex-boyfriend because she did not know what he would do to her if she were to return to the Philippines.  

11.  The Applicant does not believe state protection is available because there is institutional deficiency in the government of the Philippines.  She also believes internal relocation is not viable, as she does not have the financial resources or relatives who could help her to settle down in any other parts of the Philippines. 

The finding of the Board

12.  The Applicant testified before the Board.  The Board’s finding was brief.  Seemingly, the Board assessed her claim on the basis of her case as she asserted.

13.  In respect of Torture Risk ground, the Board found the Applicant had not suffered any severe pain as defined under section 37U(1) of the Immigration Ordinance in the past.  It found her ex-boyfriend had every opportunity to hurt her or to stop her from doing anything disadvantageous to him, but he never did so.  It found he had no intention to harm her and she had no real risk of torture upon her return to the Philippines.  It also found her dispute with her ex-boyfriend a private dispute in which no police or government officials had ever been involved.  As for her ex-boyfriend’s parents, they were just angry.  As for her fear of being killed by the friends of her ex-boyfriend if she reported them to the police, there was no evidence that she had reported them to the police.  Although her ex-boyfriend went to her mother’s home and uttered a threat of killing her, the Board considered that was just an outburst of anger.  If he really wanted to kill her, there was no necessity to tell everyone about it.  

14.  It also found on the basis of authoritative and credible country of origin information (“COI”) that adequate state protection will be available in the Philippines. 

15.  In respect of BOR 2 Risk ground, the Board found this risk was not engaged in relation to death sentence and genocide.  It also found she had failed to establish a personal and real risk of being arbitrarily deprived of her life in violation of BOR 2 Risk ground upon her return to the Philippines.

16.  In respect of BOR 3 Risk ground, the Board found for the same reason as it found in relation to Torture Risk ground that it is unlikely that she would face a genuine and real risk of being subjected to ill-treatment upon her return to the Philippines.  In addition, adequate state protection is also available to mitigate the risk.

17.  In respect of Persecution Risk ground, the Board found that her fear of ill-treatment arose from a private and personal dispute between her and her ex-boyfriend and was not on account of race, religion, nationality membership of a particular social group or political opinion.  It therefore fell outside the protection of this ground.

18.  Lastly, on the basis of the COI, the Board found, having regard to her age, education and working experience, it would not be unduly harsh for her to relocate to other parts of the Philippines to avoid her ex-boyfriend and make a living.

19.  The Board found that she came to Hong Kong to work as a foreign domestic helper and not for the purpose of seeking non-refoulement protection.  This view is reinforced by the fact as she told the Board that she tried to look for another employer after having been sacked from her second employment in June 2014.  She did not apply for non-refoulement protection even after the employment agency told her that it was unlikely that she could be re-employed because she had been dismissed within a month.  The Board formed the view that she was not telling the truth on how she survived during her more than three years’ overstaying in Hong Kong from 2 June 2014 to 23 October 2017.   Furthermore, the Board found she was not genuinely in fear of her ex-boyfriend’s threat as she did not applied for non-refoulement protection even after learning that he had gone to her mother’s home in 2016 to threaten to kill her.  

20.  In the circumstances, the Board came to the conclusion that there could not possibly be any substantial grounds for finding that the Applicant would face a real risk of ill-treatment if refouled to the Philippines.  Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found that the Applicant had failed to establish the factual basis to support her claims for protection under any of the applicable grounds under the USM.  Hence, it dismissed her appeal against the decision in the Notice.

Legal principles applicable to judicial review

21.  The role 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.  The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[7].

Grounds for judicial review

22.  The Applicant annexed a document to advance the following four grounds of appeal in relation to breach of procedural fairness to her Form 86:

(1)   the Board unlawfully fettered its discretion by refusing her appeal on the ground that she did not satisfy the requirement;

(2)   the Board acted in a procedurally unfair manner in dealing with her appeal;

(3)   the Board’s Decision was unreasonable or irrational; and

(4)   the Board failed to meet the greater care and duty owed to a self-represented claimant.

23.  In the same document, the Applicant made the following two complaints which can be regarded as additional grounds of appeal:

(5)   she was not given an opportunity to keep forward her submissions in an oral hearing nor was she invited to submit written submissions; and

(6)   the Board significantly relied on the source of news which is fairly outdated, hearsay, or not officially recognized.

24.  In her supporting affirmation, the Applicant repeated grounds (5) and (6) above. 

25.  The Court is familiar with these grounds which appear to be template grounds used in some other applications which may have no bearing to the facts of this leave application.  These grounds are lacking in particulars.  When asked, the Applicant’s only response is that she forgot, she had no idea or did not know.  All she could say is that it is dangerous for her to stay in the Philippines.  Apart from vagueness and lack of particulars, these grounds are all directed at the Board’s finding of fact which is solely within the realm of the Board, which the court in a judicial review will not intervene, save for errors of law, procedural unfairness and irrationality in the Decision.  After the principles in the preceding section had been explained to her and in answer to the Court’s question on these matters, the Applicant confirmed that she had no complaint about error of law, procedural unfairness and irrationality in the Decision.  She just asked the Court to help her to stay in Hong Kong.  In the absence of proper grounds or grounds with adequate particulars, the court in an application for leave to apply for judicial review could only focus its attention on these elements in its anxious scrutiny of the Decision.

Overall scrutiny

26.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board assessed her evidence carefully, tested it against common sense and inherent probability.  Except for the genuineness of her feared harm, it assessed the Applicant’s claim on the basis of the case as she asserted.  It did not accept she was genuinely in fear of harm from her ex-boyfriend.  This is a finding of fact solely for the Board.  It gave reasons for its finding.  It was on that basis that the Board found the Applicant had failed to establish her claim for non-refoulement protection under any of the applicable grounds under the USM.  These are mixed findings of fact and of the law.  Insofar as they are finding of the law, they are absolutely correct.  Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law, procedural unfairness or that the Decision is irrational.  The Court is concerned about the Board's criticism of the Applicant's credibility on how she survived during her more than three years' overstay in Hong Kong as noted in paragraph 19 above.  The criticism might indicate that the Board had taken irrelevant matters into account in assessing the credibility of her non-refoulement claim.  However, on a proper reading of the Decision, the Court is satisfied that the criticism is directed to her failure to explain her delay in making her non-refoulement claim and not to the crucial issues relating to her fear of her ex-boyfriend's threat. The Court could detect no error of law or procedural unfairness in the Decision.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge her burden of proving her fears and risks under the current and more stable political situation in the Philippines.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success.

Conclusion

27.  The delay in making this leave application is substantial.  The Applicant has no reasonable explanation for the delay.  There is no merits in her leave application.  The Applicant’s unexplained delay not only evinced a lack of intention to prosecute her leave application, but also reflects an underlying lack of merits in her leave application and her non-refoulement claim, which the above analysis shows.  Her conduct resulted in delay in her refoulement process.  There is no room for this Court to exercise discretion to grant her extension of time to file the leave application.  For the above reasons, extension of time to file the leave application is refused and the Applicant’s leave application is also refused.

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

[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 23 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)]