TICUALA, ISABEL MAGNA SAY-EO v. IMMIGRATION DEPARTMENT

HCAL 473/2018

[2020] HKCFI 986

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 473 of 2018

     Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

1.  extension of time for the application for leave to apply for Judicial Review ofthe decision of Torture Claims Appeal Board dated 3 March 2017 refused; and

2.  leave to apply for Judicial Review dismissed.

It is further directed that:

3.  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;

4.  when filing the application for leave to appeal, the Applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

5.  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;

6.  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

7.  liberty to apply.

Observations for the Applicant:

1.  The Applicant is a 42-year-old national of the Philippines who last arrived in Hong Kong on 15 March 2006 with permission to continue to work as a foreign domestic helper until the expiration of her then employment contract on 25 March 2007 or within 14 days of its early termination. However, when her contract was prematurely terminated on 26 August 2006, she did not depart and instead overstayed and was arrested by police on 11 April 2009. After she was referred to the Immigration Department for investigation, she raised a torture claim on the basis that if she returned to the Philippines she would be harmed or killed by her creditors for failing to repay her loans, and when her torture claim was rejected, she raised a non-refoulement claim for protection on the same basis. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Kayan, Tadian, Mountain Province, the Philippines. After leaving school she worked as a domestic helper, married her husband in 1999 and moved to live with him in Eastern Buyagan, La Trinidad, Benquet.

3.  In 1996 the Applicant decided to seek employment in Korea and borrowed a loan from her aunt to pay the employment agent and related expenses, but when it turned out unsuccessful, she asked her aunt to allow her to delay her repayment so that she could apply for employment in China.

4.  To finance her second application, she borrowed a loan from a local money‑lender to pay the employment agent for her application to China, but when that also turned out to be unsuccessful, she borrowed a third loan from another money-lender for her application to work as a foreign domestic helper in Hong Kong, which was successful and so in 1997 she departed for Hong Kong to start her employment there.

5.  However, notwithstanding her plan to make monthly remittances from her salary to the Philippines for her loans repayments, she found it impossible to spare any money to do so due to her other financial commitments towards her family that she was in fact unable to repay any of her loans, and as a result the money-lenders had threatened to kill her when she returned to the Philippines, while her aunt had confiscated her mother’s house in the Philippines as part repayment of the loan after her mother had passed away.

6.  Due to the death threats from her creditors, the Applicant was afraid to return home after her last employment contract was terminated in 2006, and upon her arrest for overstaying in Hong Kong, she raised her torture claim, and when that was rejected by the Immigration Department, she then sought non-refoulement protection by completing a Supplementary Claim Form on 26 May 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.       

7.  By a Notice of Decision dated 10 September 2015 the Director of Immigration (“The Director”) rejected the Applicant’s claim on all then applicable grounds except for torture risk but including risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights (“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”).

8.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her creditors to the Applicant upon her return to the Philippines as low due to the absence or low intensity and frequency of past ill-treatment from them, that her problems with them were private personal monetary disputes 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 show that reasonable internal relocation alternatives are available in the Philippines with a large population of 100 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 part of the Philippines away from her home district in large cities such as Manila where it would be difficult if not impossible for her creditors to locate her.

9.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which she attended an oral hearing on 12 August 2016 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 3 March 2017 her appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision the Board found the Applicant’s account of her loans from her creditors and their threats doubtful and unreliable, and that even if they were true that in the absence of any official involvement that state protection would be available to her, as well as reasonable internal relocation within the Philippines that it would not be unduly harsh in her circumstances for the Applicant to relocate to other areas away from her home district to avoid her perceived harm or threats from her creditors that her claim for non-refoulement protection failed on all applicable grounds.

11.  By a Notice of Further Decision dated 19 April 2017 the Director again rejected the Applicant’s claim upon receiving and considering additional submissions made by her relevant to her non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”) after finding and concluding her claim even on her own case did not engage BOR 2 Risk.  

12.  On 6 June 2017 the Applicant again lodged an appeal to the Board against the Director’s Further Decision, for which she again attended an oral hearing on 15 October 2018 before the Board during which she gave further evidence and answered questions put to her by the Adjudicator for the Board. On 31 October 2018 the Board upon finding no room for engaging the BOR 2 ground based on the facts of the Applicant’s claim again dismissed her appeal and confirmed the Director’s Further Decision.

13.  Meanwhile on 23 March 2018 the Applicant filed her Form 86 for leave to apply for judicial review of the earlier decisions of the Director and the Board, which is the matter now before me, but no ground for seeking relief was given in her Form, and in her supporting affidavit of the same date she merely stated that she wants “to appeal and review and to reject the decision made by the Immigration Department against [her] claim, as they disregard [her] dangerous situation” without providing any particulars or specifics or elaboration as to in what way was her situation disregarded, nor did she put forward any other proper or valid ground for her intended application. Neither did she request any oral hearing for her application.   

14.  By then she was also late with her Form 86, as Order 53 Rule 4(1) of the High Court Ordinance, Cap. 4 requires that an application for leave to apply for judicial review 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.

15.  As the last day of the three-month period for the Applicant to file her Form 86 for judicial review of the Board’s First Decision fell on 3 June 2017, she was therefore late by more than 9 months 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: see Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393.

16.  In the Applicant’s case, a delay of more than 9 months must be regarded as very substantial or excessive, for which she failed to provide any explanation either in her Form or supporting affidavit, and given the fact that she can clearly read and write English and there is no evidence of her being detained by the Immigration Department at that time, I am unable to find any valid explanation for her serious delay.

17.  As for the merits of her intended challenge, as noted above, in the absence of any error of law or procedural unfairness in her process before the Director or the Board or in their decisions being clearly shown by the Applicant, I do not find any reasonably arguable basis to challenge the findings of the Director or the Board either.

18.  As has been repeatedly emphasized by the Court of Appeal, 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.

19.  The fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of the Philippines, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.       

20.  In the premises and 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.

21.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for her serious delay, I refuse to extend time and accordingly her leave application is dismissed.

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