Case Detail

HCAL 1894/2018

[2020] HKCFI 2441

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1894 OF 2018

_____________

RE:

Mahilum Arlyn Aropo

Applicant

_____________

Before: Deputy High Court Judge C P Pang in Chambers

Date of Decision: 29 September 2020

_____________

D E C I S I O N

_____________

1. On 29 June 2020 Deputy High Court Judge Lung (“the Judge”) refused to extend time for the applicant to file her late application for leave to apply for judicial review (“the Judge’s decision”) of the decision of the Torture Claims Appeal Board (“the Board”) confirming the decision of the Director of Immigration (“the Director”) refusing the applicant’s non-refoulement claim. At the same time, the Judge gave a direction (“the Judge’s direction”) that “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” (emphasis added). The Judge’s direction followed the judgment of the Court of Appeal in MI & IYW v Permanent Secretary for Security [2018] 4 HKC 440.

2. In compliance with the Judge’s direction, the applicant by a summons issued on 6 July 2020 sought leave to appeal against the Judge’s decision.

3. The Court of Final Appeal held in the recent case of H v Director of Immigration and AH v Director of Immigration, FACV 1 & 2 of 2020, [2020] HKCFA 22 given on 14 July 2020 that an application for extension of time in order to apply for leave to commence judicial review is not a discrete application, separate from the application for such leave [39]. An applicant does not need Section 14AA (HCO) leave to appeal to the Court of Appeal in respect of a refusal of extension of time to bring an application for leave to judicial review [53].

4. Following the CFA’s decision, the Judge’s decision should be properly considered as a refusal of leave to commence judicial review. The Judge’s refusal of extension of time did not need leave to appeal to the Court of Appeal. The applicant could appeal from the Judge’s decision as of right within 14 days of his order: Order 53 r.3 RHC. In other words, the correct procedure was that the applicant should have lodged her appeal from the Judge’s decision by way of Notice of Appeal on or before 13 July 2020, instead of following the Judge’s direction and applying for leave to appeal.

5. Complying with the Judge’s direction, the applicant did on 6 July 2020 apply to the Judge by summons for leave to appeal. In fact, by then she would have been in time to file a Notice of Appeal had she followed the proper procedure instead of the Judge’s direction. However, the notice to be filed now will be out of the 14-day period.

6. In all the circumstances, it is only fair to treat the applicant’s summons for leave to appeal as a summons to extend time to file a Notice of Appeal. I will grant the application and extend the time for 14 days from this order for the applicant to file her Notice of Appeal.

	(C P Pang)
	Deputy High Court Judge

The applicant acted in person

HCAL 1894/2018

[2020] HKCFI 1395

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1894 of 2018

BETWEEN

	Mahilum Arlyn Aropo	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	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;

	consideration of documents only; or
	consideration of documents and oral submission by the Applicant in open court;

Order by Deputy High Court Judge K.W. Lung:

(1) Extension of time for application for leave to apply for judicial review of the decision of Torture Claims Appeal Board dated 23 March 2018 be refused; and
(2) Application for leave to apply for judicial review be 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, 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; and
(5) Liberty to apply.

Observations for the Applicant:

THE APPLICATION

1. The applicant applies for leave to apply for judicial review of the Decision dated 23 March 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2. The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with her application on paper.

3. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 was amended by replacing the Board with the Director of Immigration (“the Director”) as interesting party.

The applicant

4. The applicant is a Filipina national. She came to Hong Kong and worked as a domestic helper on 29 August 2014. Her employment contract was terminated prematurely, and she overstayed since 20 September 2014. On 24 November 2014, she surrendered to the Immigration Department. She lodged her non-refoulement claim on 4 December 2015.

5. The applicant claimed that, if refouled, she would face a life-threatening danger posed from her ex-boyfriend, Maluya Dodong (Maluya) because of her breakup with him.

6. She met Maluya in 2000. Maluya did not have a permanent address and they only met once a month. In 2010, Maluya proposed to marry her. She refused as she knew that he was a drug abuser and seller and she wanted to leave him. Maluya was angry. He hit her with hands and a metal rod. The neighbours came and he left. He threatened to kill her. She did not go to hospital for medical treatment. Nor did she report the matter to police because she had no faith in them. She stayed in her elder sister’s home for six months. Nothing happened. She came to Hong Kong as a domestic helper. In Hong Kong she had another boy-friend and had given birth to two children.

The Director’s Decisions

7. The Director considered her application in relation to the following risks:

a. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“theOrdinance”) (“Torturerisk”);
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 (“RefugeeConvention”) (“Persecutionrisk”).

8. By Notice of Decision dated 8 June 2016 (“the Director’s Decision”), the Director refused her claim on Torture risk, BOR 3 risk and Persecution risk for the reason that the level of risk of harm from Maluya upon her return to the Philippines was low [11]; that state protection was available to her [14] and that internal relocation was an option open to her [21 & 22]. By another Notice of Further Decision dated 28 June 2017, the Director found that she was unable to establish BOR 2 risk.

The Board’s Decision

9. The applicant appealed to the Board against the Director’s Decisions and attended the hearing on 15 December 2017.

10. By the Board’s Decision, the Board rejected her appeal and confirmed the Director’s Decisions.

11. The Board considered the applicant’s evidence. The Adjudicator had put questions to her. She admitted that Maluya should have no intention of killing her [34]. Having considered her evidence, the Board found that on the whole, her evidence was suspicious and unreliable and it suspected her intention of seeking protection in Hong Kong was not for protection [47]. It came to a conclusion that the main reason for the applicant to leave the Philippines was to earn more money, not to avoid Maluya [45].

12. On the basis of the evidence, the Board did not accept that she would be subjected to any of the risks above.

Application for leave to apply for judicial review

13. The applicant filed Form 86 on 10 September 2018 for leave to apply for judicial review of the Board’s Decision.

14. In her affidavit in support of her application, she did not set out any ground in support of her application. Nor did she say that the Board was in error in coming to its decision.

DISCUSSION

15. Her application is late as the Board’s Decision is dated 23 March 2018 and her application is on 10 September 2018, which exceeds nearly three months as provided under Order 53, rule 4 of the RHC. The Court of Appeal held that the Court should consider the merits of her case in determining whether time should be extended for her application. Re Adumekwe Rowland Ejike[2019] HKCA 702 28 June 2019 §19.

16. As the Board did not accept that she was under any real risk if she returned to the Philippines, her claim will fail.

17. In Re: Kartini[2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

18. There is nothing to show that the Board had committed any error in its finding of the facts or in its application of the law to her case.

19. The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.

CONCLUSION

20. Since the applicant’s application for judicial review of the Board’s Decision has no reasonable prospect of success, I refuse to extend time for her to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

FURTHER DIRECTIONS

21. 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, 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; and
5. Liberty to apply.

Dated the 29^th day of June 2020

	(Mike Mak)
	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

Notesfor the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
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)).		Sent to the Applicant on 29/6/2020 Mahilum Arlyn Aropo Applicant’s ref. no: Nil.		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 29/6/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 3971/16/6/161/F230 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 141/16 (formerly RBCZ 14517/15) & RBCZ 9002422/17 Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

RE MAHILUM ARLYN AROPO

Related cases with same parties

Files (2)