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HCAL 1839/2019
[2021] HKCFI 518
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1839 OF 2019
BETWEEN
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Baldoz Angelyn Barbosa |
Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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and |
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Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge P Li:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
1. The applicant last came to Hong Kong on 21/8/2014 on a domestic helper contract. It was terminated on 19/4/2015. She overstayed until 16/5/2015 [1] when she was arrested by the police. She filed a non-refoulement claim on 19/5/2015.
2. The non-refoulement claim was dismissed by the Director on 18/9/2015. The appeal was dismissed by the TCAB on 2/8/2016. Her leave application for judicial review was refused by Anthony Chan J on 3/4/2017 (HCAL 147/2016).
3. During the interim on 26/1/2017, the Director invited the applicant to file further information on all grounds, in particular, BOR 2. She did not respond. The Director considered the existing information and concluded that the applicant failed to establish personal and real risk of BOR 2 if she returned to the Philippines. The Director dismissed the BOR 2 claim on 14/2/2017.
4. The applicant appealed but she only filed a notice of appeal to the TCAB on 10/3/2017. She was out of time for about 10 days. [2]
5. In the notice, she stated that “Because I just receive the letter on 04/02/2017, that’s why it took me little time to find someone who can help me to translate the decision letter and help me to prepare the appeal letter as my English is very poor.”
6. The adjudicator refused late filing of the notice. He pointed out that the applicant did not provide a reasonable or satisfactory explanation for the delay. He had also considered the factual basis of the claim as set out in the decision of the Director. The applicant was represented at this stage and should be aware of the time limit of appeal. The applicant had not informed the Director and the TCAB any change of address. He concluded that there was no special circumstance to allow late filling. He dismissed the appeal on 24/6/2019.[3]
7. The applicant filed the leave application in this case for judicial review on 2/7/2019. Upon her request, an oral hearing was held on 10/12/2020. The applicant acknowledged that she was late in filing the notice of appeal. She had nothing to add regarding the delay.
8. In Re Qasim Ali, the Court of Appeal held that in assessing whether to allow late filing, the Board should consider the merits of the appeal regardless of the procedural breaches or the lack of explanation. This was the requirement under s. 37ZT (2)(b) of the Immigration Ordinance.[4]
9. Before deciding whether to allow late filing, the adjudicator did consider the factual basis of the applicant’s claim. He concluded there was no injustice to disallow late filing.
10. In this regard, it may be helpful to set out the basis of her claim. The applicant married in 1996. She had 4 children. She had worked in Jordan and UAE as a domestic helper. In July 2014, she returned to the Philippines from Hong Kong [5] for holidays. She stayed overnight at her mother’s house on the invitation of her step-father. Her mother was not at home. That night, she was raped by her step-father. She did not mention the rape to anyone as she felt embarrassed. She did not report to the police as her step-father threatened to harm her, her mother and her children. She was in fear and overstayed in Hong Kong.
11. The Director rejected her claim as there was no ill-treatment. There was no involvement of any officials. There was reasonable State protection according to the COI. The police would uphold the rule of law. In fact, internal relocation was possible. It was the applicant’s choice not to seek assistance. In Hong Kong, she delayed filing the non-refoulement claim until she was arrested for overstaying.
12. The applicant stated in her affirmation in support of the leave application that she was not legally represented in the appeal. She was not given an oral hearing. The TCAB relied on sources of news which were not officially recognized.
13. It is well settled that a claimant under the USM does not have an absolute right to free legal representation at all stages of the proceedings.[6] In fact, the applicant had legal assistance in presenting her case to the Director.
14. The applicant was late in filing a notice of appeal. It is her duty to set out the explanation in the notice. There is no requirement for an oral hearing.
15. The applicant mentioned about the sources of news which are irrelevant in the context of this case. They are put in to confuse this court.
16. In my view, there is no merit in the applicant’s claim. I agree with the decision of the TCAB.
Conclusion
17. For the reasons above, the Applicant’s claim is not reasonably arguable. There is no realistic prospect of success. I refuse leave for judicial review.
Dated the 3rd day of March 2021
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(Mike Mak) |
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for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must: |
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). |
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Sent to the Applicant
on 3 March 2021
Baldoz Angelyn Barbosa
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 3 March 2021
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
BOR 270/17/3/41/F20
Director of Immigration
Putative Interested Party’s ref. no.:
RBCZ 9001779-16
(Formerly RBCZ 300-15)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] She should leave Hong Kong latest by 4/5/2015.
[2] Decision of the TCAB dated 24/6/2019, §§9—10.
[3] Decision of the TCAB dated 24/6/2019, §§16—20.
[4] CACV 547/2018, §§25-26.
[5] She was employed in Hong Kong under a domestic helper contract which started in about March 2013. See NCF dated 14/8/2015, answer to Q35, §4.
[6] See Zafar Muazam [2018] HKCA 176, at paragraph 22.
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