PEPITO JENETH TANURA AND OTHERS v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 1027/2017

[2018] HKCFI 1968

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1027 of 2017

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 Applicant being absent;

(1)  An extension of time for the application for leave to apply for judicial review be refused; and

(2)  Leave to apply for judicial review 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, he/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 not 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,

(5)  Liberty to apply.

Observations for the Applicant:

1.  The applicant is a 33-year-old national of the Philippines who last arrived in Hong Kong on 9 April 2015 with permission to work as a foreign domestic helper until the expiration of her employment contract on 10 June 2016 or within two weeks of its early termination.  On 8 May 2015 when her contract was prematurely terminated she however overstayed and surrendered to the Immigration Department on 20 July 2015 and lodged a non-refoulement claim on the basis that if she returned to the Philippines she would be harmed or killed by her former cohabitee JE.  Whilst being released on recognizance pending determination of her claim, she gave birth to twins daughters on 29 October 2015 in Hong Kong and for whom she subsequently also lodged a non-refoulement claim on the same basis as hers. 

2.  The applicant was born and raised in Dolores, Abra, Ilocos Norte, the Philippines where her parents still live.  After living school she started a relationship with JE and cohabited with him during which she gave birth to a son and a daughter.  Their relationship however started to deteriorate when JE became abusive towards the applicant after getting drunk, and on one occasion in 2009 after being hit by JE with an umbrella, the applicant left with the children to stay at her parent’s home for several days before returning home.

3.  About one month later JE again hit the applicant after drinking by punching her on the face which broke her nose and threatened her with a kitchen knife.  The applicant therefore fled with the children to take shelter at her parents’ home, but after the police treated the incident only as a domestic dispute without charging JE for the assault, the applicant decided to place her children in her parents’ care and to avoid JE by going overseas to work as a foreign domestic helper in 2010 first at Dubai and Omen and then starting in 2012 in Hong Kong.

4.  In 2013 she started a relationship with a Pakistani man in Hong Kong with whom she later became pregnant with her twin daughters, and in April 2015 they held a Muslim marriage.  However, after JE learnt about her pregnancy and her subsequent marriage, he made a telephone call to the applicant threatening to kill her and her daughters upon their return to the Philippines, and hence after surrendering to the Immigration Department for overstaying in Hong Kong, the applicant lodged a non-refoulement claim for herself and after their birth also for her daughters, and for which she later completed a Non-refoulement Claim Form (“NCF”) on 8 January 2016 for herself and her daughters and attended screening interviews before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 11 August 2016 the Director of Immigration (“the Director”) rejected the claim of the applicant and her daughters on all the applicable grounds including risk of torture 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 section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”), Cap 383 (“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 after taking into account of all the relevant circumstances of the applicant’s claim assessed the risk of harm from JE to her and her daughters upon return to the Philippines as low in that there is no reliable evidence that JE has any real intention of harming them after the applicant has left him all these years, that in any event it was a private domestic dispute without any official involvement that state and police protection would be available to them if resorted to, and that objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in 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 the applicant as an able-bodied adult with work experience to move with her daughters to other areas away from her home district such as Manila where it would be difficult if not impossible for JE to locate them.

7.  By a Notice of Further Decision dated 4 January 2017 the Director again rejected the claim of the applicant and her daughters in the absence of any response from them to an earlier invitation to submit additional facts which may be relevant to their 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”).

8.  By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, which appeal she filed for herself and her daughters on 29 August 2016, and for which she attended an oral hearing on 11 January 2017 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 30 June 2017 her appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.  In its decision the Board found the applicant’s claim of risk of harm from JE to her and her daughters in the circumstances of her case doubtful, that in any event that state and police protection would be available to them, and agreed with the Director that it would not be unduly harsh for the applicant and her daughters to relocate to the Philippines.  

10.  On 7 December 2017 the applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but in which she did not include her two daughters as co-applicants, nor did she attend the oral hearing before me without any explanation despite having requested for one and hence the matter could not be clarified with her, but as I noted that she did in her supporting affirmation of the same date state in paragraph 3 that her present application was also made on behalf of her two daughters, I have therefore proceeded to treat this application of the applicant as one also made on behalf of her two daughters, and for which the applicant put forward the following grounds for their intended challenge as follows:

(1)  lack of legal representation in their appeal before the Board; and

(2)  lack of language assistance in not providing them with any translation of their NCF to enable them to find out if the interpreter had translated the basis of their claim properly.

11.  However, by then the applicant was more than two months late with her Form 86, 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 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.

12.  Accordingly and as the last date for her to file her Form 86 was 30 September 2017, the applicant was therefore more than two months out of time, for which she did not provide any explanation in her supporting affirmation, nor as noted above did she attend the oral hearing for her leave application now before me to give any reason for the delay of which cannot be said to be insignificant, the only other relevant matter to be taken into account is to see if there is any merit in her intended challenge against the decisions of the director and the Board: see Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration & Anor CACV 63/2015.

13.  For her complaint in ground (1) of not being provided legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

14.  The applicant already had the benefit of legal representation in presenting the case to the Director, and was able to testify and make representation in the appeal hearing before the Board and to answer questions put to her by the adjudicator without difficulty.  I do not find anything amiss arising from the lack of legal representation in the appeal process, and I do not think this ground is reasonably arguable.

15.  As for the complaint of not being provided with a translation of their NCF, it is plain that the NCF were completed on the applicant’s instructions to her legal representation from DLS, and that she was assisted by an interpreter at her appeal hearing before the Board. I also note that all the court documents were in English which indicates either that she is familiar with the English language or has access to such language assistance, while her affirmation was also in English and did not contain any interpretation clause, which again suggests that she can understand the English language without the need for interpretation, plus the very fact that she had worked in Hong Kong since 2012 that it would not be unreasonable to assume that she must have at least some basic working English to be able to carry out her job as a domestic helper all these years.  As such I do not find any arguable basis to challenge the fairness of the process on the basis that she was not given any translation of her NCF in her appeal before the Board.

16.  The fact is that once it has been established by both the Director and the Board that the risk of harm in the applicant’s claim is a localized one and that it is not unreasonable or unsafe for the applicant and her daughters to relocate to other areas of the Philippines, the Director and the Board were entitled to find no justification to afford them with non-refoulement protection in Hong Kong, and of which the court will not usurp their role as primary decision makers: see TK v Jenkins & Anor [2013] 1 HKC 526.

17.  In the premises and having proceeded to consider 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.  For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review by her and on behalf of her daughters, and in the absence of any good reason to extend time to the applicant, her application for herself and her daughters is accordingly 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