SANIDAD YOLANDO JR OBRERO v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1550/2021

[2022] HKCFI 24

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1550 of 2021

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 Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review of the Decisions dated 8 October 2021 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.     The applicant is now in custody of the Immigration Department and he asked for a hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I have therefore fixed a hearing for him.

The applicant

3.     The applicant is a national of the Philippines. He had been working as a foreign domestic helper since January 2011.  He last entered Hong Kong as a domestic helper on 23 June 2019.  However, his employment contract was prematurely terminated.  He overstayed since 4 September 2019.  On 11 February 2020, he surrendered to the Immigration Department and lodged a non-refoulement claim on the same date.

4.     The applicant claimed that, if refouled, he would be harmed or killed by the Muslims because he failed to repay their loan.  According to the applicant, he was addicted to gambling and, in April 2019, he borrowed money from Amir, a Muslim money lender.  As his employment contract was terminated, he defaulted the payment.  His mother informed him that Amir and followers came to his parents’ house and posed death threats. Out of fear, he stayed in Hong Kong for protection.  Details of his story are set out in paragraph 11 of the Director’s Decision described below.

The Director’s Decision

5.     The Director considered his application in relation to the following risks:

a.     risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.     Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c.     risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d.     risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

6.     Since the applicant repeatedly failed to respond to letters from the Director and the scheduled screening interviews [4]-[9], the Director proceeded to assess his claim on the available information.  By Notice of Decision dated 26 February 2021, the Director refused his claim for the reason that his claim was not substantiated.  The Director found that the level of risk of him being harmed or killed if he returned to the Philippines was assessed to be low [17]-[20]; that state protection would be available to him [21]-[24] and that internal relocation was an option open to him [25]-[26].

The Board’s Decision

7.     On 30 August 2021, the applicant filed a notice of appeal/petition against the Director’s Decision to the Board.  As the statutory time limit to file the appeal against the Director’s Decision to the Board was within 14 days, the applicant was late for more than 5 months. 

8.     The Board considered the newly amended section 37ZT of the Immigration Ordinance, Cap.115 and relevant guidelines on late filing.  In his notice of appeal/petition, the applicant explained, as recorded at paragraphs 27 and 28 of the Board’s Decision, that he did not have the documents at hand and had to write to “SKYLINE KOWLOON BAY” for his documents.  When he received the documents, it was already late. 

9.     The Board rejected this explanation for such a lengthy delay.  It found that the Director’s Decision was sent to the applicant’s last known address at 4/F Yook Tung Building, No. 5 Tai Yuen Street, Wanchai on 26 February 2021 and should be received by the applicant on 28 February 2021.  Thus, the applicant ought to be able to file his notice of appeal/petition on or before 15 March 2021 [22]. 

10.     Since the Director’s Decision was sent to the residential address as listed in the applicant’s notice of appeal/petition to the Board, the Board found that there was no sufficient evidence to satisfy the requirements that the applicant had exercised all due diligence to file the notice of appeal/petition within time but there was circumstance beyond his control preventing him from doing so [30]-[31].  Thus, the Board disallowed the applicant’s late filing.     

Application for leave to apply for judicial review

11.     The applicant filed Form 86 on 9 November 2021 for leave to apply for judicial review of the Board’s Decision.

12.     In his affidavit in support of his application, he said that he was not satisfied with the Board’s Decision because it did not mention all the facts and evidence.

DISCUSSION

13.     The issue before this Court is whether the Board’s Decision of refusing to extend time for the applicant to file his notice of appeal is in compliance with the public law and whether the applicant’s application has realistic prospect of success.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

14.     It has come to my notice that the applicant explained why he was late in the notice of appeal.  He said that he did not have the documents at hand and had to write to Skyline Kowloon Bay for the documents.  He did not specify what the documents were.  They may be the Director’s Decision and/or other documents as his evidence to prove his case.

15.     The adjudicator understood his explanation as ‘he had been unable to file his appeal on time because he had been waiting for a response from the ImmD to a request he had made for the ImmD to supply him with documents.’  The Board did not accept it as his explanation.

16.     From the record, on the notice of appeal, the applicant had put down his residential address and his correspondence address at CIC.  Is it possible that he did not receive the Director’s Decision, which was sent to his residential address only? If this is possible, then will he has a realistic prospect of success in his intended judicial review?

17.     The delay is serious.  The burden is on him to explain his delay in a clear and comprehensible way.  There is no evidence as to when he was detained in the CIC or why he had to adopt this address as his correspondence address.  From the wording of his explanation, he did not say that he did not receive the Director’s Decision at CIC.  He referred to the documents instead.  The adjudicator had also considered his past records of not showing up without explanation, which he is quite entitled to do.  Under the circumstances, the adjudicator had reason not to accept his explanation.

18.     I shall go further to consider whether, if he was allowed to proceed to appeal against the Director’s Decision, he would have realist chance of success.  In his notice of appeal, he repeated that he would be killed if he returned to the Philippines.  There is no challenge to the Director’s findings that state protection was available to him and that internal relocation was an option open to him.

19.     I find that the applicant has no realistic chance of success in his intended judicial review.

CONCLUSION

20.     I therefore refuse to grant leave for the applicant to apply for his intended judicial review.  Accordingly, I dismiss his 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