GUMIRAN MERLYN LOPEZ v. DIRECTOR OF IMMIGRATION

HCAL 2754/2019

[2025] HKCFI 3681

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 2754 OF 2019

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 oral submissions by the Applicant in open court;

1.  Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 14 March 2016 be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 47-year-old national of the Philippines who arrived in Hong Kong on 13 April 2008 as a visitor with permission to remain as such up to 27 April 2008 when she did not depart and instead overstayed, and was arrested by police almost 6 years later on 15 January 2014. After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim for protection on the basis that if she returned to the Philippines she would be harmed or killed by her creditor over her unpaid debts. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Binalian, Kayapa, Nueva Vizcaya, the Philippines. After leaving school she assisted in her parents’ farming business, got married and raised a family with 3 children in her home district.

3.  In early 2008 she intended to apply through an employment agency to work as a foreign domestic helper in Hong Kong, and to meet the necessary fees and expenses she borrowed a loan from a childhood friend Edna to be repaid by monthly instalments from her expected salary to be earned in Hong Kong.

4.  On 13 April 2008 she departed the Philippines for Hong Kong on a tourist visa to meet up with her agent to pay for the fees and expenses to complete her application, but soon thereafter her agent just disappeared with the money but without getting her the job as promised, and when she was without any money to repay Edna who then came with her brother to the Applicant’s home in the Philippines to make threats against her to her family, and so the Applicant was afraid to return to the Philippines and therefore overstayed in Hong Kong, and upon her subsequent arrest by the police she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 3 March 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 22 April 2015 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then 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 the Hong Kong Bill of Rights Ordinance, Cap. 383 (“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”).

6.  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 creditor Edna and family upon her return to the Philippines as low due to the low intensity and frequency of past ill‑treatment from them, that there is no evidence of any real intention of her creditor who was her childhood friend to seriously harm or kill her other than to press her to repay her debts, that in any event it was a private monetary dispute between her and her creditor only 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 (“COI”) show that reasonable internal relocation alternatives are available in the Philippines with a large population of 107 million people spread across a vast territory of more than 298,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from her home district in large cities such as Manila or Cebu where it would be difficult if not impossible for her creditor to locate her.

7.  On 6 May 2015 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 24 December 2015 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 14 March 2016 her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision[1] the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of her claim of fear of harm from her creditor Edna and her family that caused her to overstay in Hong Kong to seek protection, that her credibility was further undermined by her failure to raise her claim upon arriving in Hong Kong until almost 6 years later and only after her arrest by the police, that even if her account of events as regard her debts owed to Edna and the resultant threats from Edna were true that there was no reliable evidence of any real intention of Edna or her family to seriously harm or kill her other than to press her to repay her debts, and that in any event it was a private monetary dispute between her and Edna only without any official involvement that state or police protection would be available to the Applicant upon her return to the Philippines as well as reasonable internal relocation alternatives for her to move safely to other parts of the country away from her home district without any risk of being located by Edna that her claim for non‑refoulement protection failed on all applicable grounds.

9.  Meanwhile on 20 January 2017 the Director in writing invited the Applicant to submit additional facts which she may consider relevant to her non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute and non-derogable rights under the HKBOR including right to life under Article 2 (“BOR 2”), and in the absence of any response from her, the Director by a Notice of Further Decision dated 7 February 2017 also rejected the Applicant’s BOR 2 Claim upon finding that she had failed to establish a personal and real risk of her absolute and non-derogable rights under the HKBOR including right to life under BOR 2 being violated upon her return to the Philippines.

10.  On 5 April 2017 the Applicant again lodged an appeal to the Board against this further decision of the Director, for which the Board did not find necessary to hold another oral hearing and proceeded to deal with it on paper, and by a Decision[2] dated 20 August 2019 the Board dismissed her appeal upon finding that there was no personal and real risk that the Applicant may face any BOR 2 risk upon her return to the Philippines on the factual basis of even her own case of monetary dispute between her and her creditor only that her claim simply did not engage the BOR 2 ground.

11.  On 19 September 2019 the Applicant filed her Form 86 for leave to apply for judicial review not of this second decision of the Board but of its first decision of 14 March 2016, and put forward various grounds for her intended challenge, of which she confirmed at the hearing as follows:

(1)  That the Board reached the decision wrongly in assessing her non-refoulement claim as the decision was not fair or reasonable as required by the Wednesbury test in failing to recognize that her life must be protected by the criminal law from extra-judicial killings that she may face if deported back to her home country;

(2)  That the Board failed to appreciate or place proper or sufficient weight or importance to the presence of State Acquiescence in her case which led to an unfair outcome of rejecting her non-refoulement claim;

(3)  That the Adjudicator acted unreasonable and was procedurally unfair by placing too much reliance on COI but failed to take into account the Applicant’s personal background and experience in assessing her claim;

(4)  That the Board had listed relevant COI which supported the Applicant’s aversions that the police in her country would not be able to protect but failed to consider or give sufficient weight to such evidence and instead ruled otherwise against the Applicant’s case which was a clear case of unfair attitude shown by the Board which in itself is enough to render its decision void;

(5)  That the Board failed to attain the high standard of fairness required by the Wednesbury test in failing to take into account the Applicant’s argument that corruption and incompetency of the administration in the Applicant’s country is still a very serious problem as various human rights organizations had compiled reports that stated testament to the Applicant’s assertions.

12.  By then the Applicant was obviously out of time with her application, 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 day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

13.  As the last day of the three-month period for her to file her Form 86 as regard the first decision of the Board fell on 14 June 2016, the Applicant was therefore more than 3 years late 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: AW v Director of Immigration [2016] 2 HKC 393.

14.  In the Applicant’s case, a delay of more than 3 years must be considered as extremely substantial and inordinate, for which she failed to put forward any explanation or reasons, and as the record shows that the decision was sent on the same day of 14 March 2016 to her then reported address without being returned through undelivered post, I am unable to see any good or valid reason for her such serious delay.

15.  As for the merits, if any, of her intended application, those grounds put forward by the Applicant are all just some bare and vague assertions containing a few key words or phrases but without any particulars or specifics or elaborations as to how they apply to her case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy were state acquiescence or extra-judicial killings to the Applicant’s case when on the factual basis of even her own case that it was a private monetary dispute between her and her creditor only without any official involvement or political element at all. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for her intended challenge.

16.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the 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.

17.  In the Applicant’s case, the fact is that it has also been established by both the Director and the Board in their respective earlier decisions that the risk of harm in her claim even if real 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.

18.  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 under all the applicable grounds

19.  In the premises, as I am for the given reasons 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 such serious delay, I refuse to extend time and accordingly dismiss her leave 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