Estalilla Federico Supsup v. Torture Claims Appeal Board/ Non-efoulement Claims Petition Office

HCAL 454/2019

[2021] HKCFI 168

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 454 OF 2019

BETWEEN

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 the documents and oral submission by the Applicant in open court.

Order by Deputy High Court Judge C P Pang:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.In a decision made on 27 May 2015, the Director of Immigration (“the Director”) rejected the applicant’s claims for non-refoulement on grounds of torture risk, BOR3 Risk (risk of torture, or cruel, inhuman or degrading treatment or punishment) and persecution risk.  The applicant appealed that decision to the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”).  After an oral hearing, the Board dismissed his appeal for the reasons set out in its Decision dated 1 February 2017 (“the Board’s 1^st Decision”).

2.Subsequently the Director invited the applicant to submit additional facts, if any, which he considered relevant to a claim for non-refoulement on the ground of BOR2 risk (risk of loss of right to life).  The applicant did not submit any additional facts.  In a decision made on 11 April 2017, the Director rejected the claim on that ground as well.  The applicant again appealed that decision to the Board.  However, the Notice of Appeal/ Petition to the Board (“NOA”) was filed out of time by 18 days. He gave the reason for being late as “get my letter is to late in box letter (sic)”.

3.Having considered the contents of his NOA, the Board (comprising the same adjudicator who had given the 1^st Decision) did not conduct another oral hearing of the appeal.  The Board found that there was no justification to grant extension of time for filing of the NOA and there was nothing in the facts relied on by the applicant to amount to special circumstances which would make it unfair or unjust not to allow the late filing, para 8-10.  It dismissed that appeal for the reasons set out in its Decision dated 8 February 2019 (“the Board’s 2^nd decision”).

4.The applicant applied for judicial review of the Board’s 2^nd decision.

5.The applicant, born in 1955, is a national of the Philippines.  From 1992 to 2006, he took up employment as a domestic helper in Hong Kong.  When his last contract expired, he was permitted to remain until 22 June 2006 as a visitor and since then overstayed in Hong Kong.  On 20 August 2013, he was arrested by the police for taking up unlawful employment and sentenced to a total of 8 months’ imprisonment.  On 16 December 2013, he lodged a non-refoulement claim.  He was subsequently released on recognizance.

6.The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at para 2-3 of the first decision of the Board.  Put simply, the claim was based on the fear that, if refouled, the applicant would be harmed or even killed by the family members of a 7-year-old girl who died as a result of a traffic accident in 2004 where his friend, F, was driving a motorcycle, with the applicant as pillion passenger, registered under the applicant’s name.  The family members of the deceased were associated with the New People’s Army (NPA) and they had threatened to kill the applicant although no violence occurred.

The Director’s decisions

7.By his two decisions, the Director rejected the applicant’s non-refoulement claim on all applicable grounds for the reason that the claim was not substantiated.  The first decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3]. The second decision covered the BOR 2 risk^[4].

The Board’s decisions

8.The applicant attended an oral hearing on 10 June 2016 for his appeal against the Director’s first decision.  He decided to remain silent and not answer any questions.  By its first decision, the Board rejected the appeal/ petition confirming the Director’s first decision.  The Board’s decision covered the torture risk, BOR 3 risk and the persecution risk.

9.The Board gave detailed reasons for rejecting the claim at para 4-12 of its first decision.  In a nutshell, the Board found the applicant’s alleged facts “woefully vague and unreliable” and “completely devoid of detail”, on which it placed no evidential weight, para 5-6.  It found that the story about the accident was completely unreliable and there was nothing to establish the applicant’s alleged basis of fear, para 7.  The Board remarked that he did not raise any claim despite the passage of over 9 years when he was in Hong Kong before his arrest, and it was only after going into prison and 4 months after arrest that he raised his claim, para 9.  Therefore, there was nothing to support the applicant’s claim, para 12.

10.Furthermore, the Board also found that state protection was available and internal relocation was viable and reasonable to the applicant.

11.Therefore, in any event even on the applicant’s own version of facts, there was no substantial ground to believe that he would face a future risk of serious harm, para 37.

12.In the second decision of the Board, the Board found that there was no justification to grant extension of time for filing of the NOA and there was nothing in the facts relied on by the applicant to amount to special circumstances which would make it unfair or unjust not to allow the late filing, para 8-10.  In any event, for the sake of completeness, the Board examined whether the applicant’s case had any merits, para 12.  It found in the “Addendum” of its decision that there was no merit in his claim under BOR 2 risk, and the appeal would have no prospect of success even if extension of time were to be granted to file the NOA, para 15.

Application for leave to apply for judicial review

13.The applicant filed a Form 86 on 18 February 2019 for leave to apply for judicial review of the second decision of the Board.  He did not request an oral hearing.  The application is therefore considered on the papers.

14.In the Form 86 and affirmation in support of his application, the applicant did not state any specific grounds for judicial review.  He only said that he was not satisfied with the decision of the Board.

Discussion

15.The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  The role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence and COI materials, 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, procedural unfairness or irrationality in the decision of the Board.

16.As the Director’s decisions have been superseded by the Board’s decisions, they are not susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549.  Therefore, while the Court examines the decisions of the Director and the Board, it will only focus on the latter’s decisions.

17.While the applicant only applied for judicial review of the Board’s second decision, it is necessary to take into account of the reasoning and findings of the Board in its first decision.

18.In its first decision, the Board in fact rejected the applicant’s appeal/ petition on the ground that it disbelieved the applicant and rejected the accounts of primary facts relied upon by the applicant based on its adverse findings of his credibility.  On the factual findings, it concluded that the applicant would not be at any real risk of harm or ill-treatment and there was no basis for the applicant’s fear.  Furthermore, state protection and relocation are available to the applicant.  Therefore, even on his own version, the claim could not be established.

19.As mentioned, assessment of evidence/ primary facts and the risk of harm are within the province of the Board and the Director, this court will not interfere with the decisions unless there is a public law ground for the Court to do so.

20.I also agree that his conduct of not making his non-refoulement protection for a long period of time damaged his credibility and was inconsistent with someone in genuine fear for his life and safety.

21.I cannot find any reasonably arguable basis to challenge any findings in the first decision of the Board.

22.As regards the second decision of the Board refusing to extend time for the late filing of the NOA, I have considered the case of the Court of Appeal in Re Qasim Ali[2019] HKCA 430.  Giving judgment of the court, Lisa Wong J stated that:

“24. In identifying what circumstances are relevant, it is imperative to bear in mind that the discretion to allow the late filing of a notice of appeal is exercisable when it would be ‘unjust’ not to do so by reason of ‘special circumstances’: see s 37ZT(3) of the Ordinance.

25. It is in this connection that we cannot agree with the Board or the Judge that merits need not or should not be considered (see Board’s Decision at [21] and Call-1 Form at [37]). In our opinion, it would be unjust not to allow the late filing of a notice of appeal where the appeal is meritorious. Indeed, nothing would be more unjust.

26.  The Board should have, under s 37ZT(2)(b) of the Ordinance, taken account of the merits of the appeal (albeit on paper without a hearing) regardless of the procedural breaches or the lack of explanation therefor.  See Re Khan Kamal Ahmed, CACV 563/2018, [2019] HKCA 377, 2 April 2019.”

23.In its second decision, the Board indeed considered the merit of the applicant’s appeal and found there was no merit in his claim, para 15.

24.As mentioned, the Board had made adverse findings on the credibility of the applicant and refused to accept the alleged primary facts in support of his claim.  There is therefore no basis in support of his claimed fear.  The applicant did not challenge the first decision of the Board.  In any event, the Board’s first decision is eminently reasonable.  Without providing additional materials or facts to the Director for the consideration of the BOR 2 risk, the claim for such risk must fail.  There cannot be criticism in the Board’s second decision dismissing the applicant’s appeal against the Director’s second decision.

25.When it has been established that it is not unreasonable or unsafe for the applicant to relocate to another part of his home country, there will be no justification for affording him non-refoulement protection in Hong Kong: TK v Jenkins & Anor [2013] 1 HKC 526.

26.Having considered the two decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law, irrational findings, or procedural unfairness in either of them.  Nor do I find any failure on their part to apply high standards of fairness.  There is entirely no merit in the applicant’s application for non-refoulement protection.

Disposition

27.For the reasons given, there is no prospect of success in the applicant’s intended application.  I accordingly refuse to grant leave to apply for judicial review.

Dated 26 January 2021

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