Peradilla Felix Jr Bool v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

HCAL 2185/2018

[2021] HKCFI 211

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 2185 OF 2018

BETWEEN

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 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.This is an application for leave to apply for judicial review against the decisions of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”).  The Director refused the applicant’s claim of non-refoulement protection.  The Board dismissed the applicant’s appeal confirming the decision of the Director.

2.The applicant, born in 1964, is a national of the Philippines.  He arrived in Hong Kong on 10 February 2010 and was permitted to remain until 24 February 2010 as a visitor.  He overstayed and remained in Hong Kong unlawfully.  On 22 March 2010, he surrendered himself to the Immigration Department and lodged his non-refoulement claim.  He was subsequently released on recognizance.

3.The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at para [5-7] of the 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 Hernando, who was the Congressman of Batangas in the Philippines.  The applicant claimed that he was the bodyguard of Hernando since 2003.  In December 2009, Hernando asked the applicant and three other bodyguards to kill Eduardo who was the political rivalry of Hernando, to ensure that Hernando could win the upcoming congressional election in January 2010.  Hernando threatened the applicant and the other 3 bodyguards that if they did not kill Eduardo, Hernando would kill them.  The applicant decided to hide and run away from Hernando.  He therefore left his country for Hong Kong on 10 February 2010.

The Director’s decision

4.By a notice of decision dated 30 January 2015, the Director rejected the applicant’s non-refoulement claim for reason that the claim was not substantiated.  Having taken into account all relevant circumstances, the Director assessed the level of risk of harm as low.  He also found that state protection is available to the applicant and internal relocation is a viable option for him, which lower the level of risk.  The decision covered then applicable grounds, namely, torture risk^[1], BOR 3 risk^[2], and persecution risk^[3]. The applicant lodged an appeal/ petition to the Board against the Director’s decision.

The Board’s decision

5.The applicant attended a hearing before the Board on 23 November 2015.

6.By a decision dated 29 November 2016, the Board rejected the appeal/ petition confirming the Director’s decision.  The Board’s decision covered the BOR 3 risk, the persecution risk, and the torture risk.

7.The Board gave detailed reasons for rejecting the applicant’s claimat paragraphs [19-50] of its decision.  In a nutshell, the reasons can be summarized as follows.  The country of origin information was inconsistent with the applicant’s claim about Hernando’s background and the applicant made no comments and failed to answer questions of the Board about it.  The discrepancies were so fundamental as to completely undermine his credibility as to any of the allegations he made in his claim.  The Board was not satisfied that the applicant had established by evidence worthy of credit.  Nor was it persuaded that any of the events given by him occurred [20-22].  It also found that there was no reason and no evidence to show that the government of the Philippines fails to protect the applicant [25]. It found him “not worthy of credit” and did not believe his accounts of events [27].

8.The Board concluded that there was no substantial ground for believing that the applicant would be in danger of being subjected to torture or harm, if refouled.

Application for leave to apply for judicial review

9.The applicant filed a Form 86 on 10 October 2018 for leave to apply for judicial review of the decision of the Board. However, he wrongly quoted the date of the decision of the Director. In his affidavit in support, he attached both the decisions of the Director and the Board. Because of the confusion, I will treat his application as against both the decisions of the Director and the Board, treating them as the respondents.

10.No request for oral hearing has been made.  The application is therefore considered on the papers.

11.In the Form 86 and supporting affidavit, the applicant did not set out any proper grounds for the relief sought.

Discussion

12.The relevant principles regarding non-refoulement claims have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  In particular, 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, country of origin information, 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.

13.When the applicant pursued the appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549.  Therefore, while the court will examine the decisions of the Director and the Board with rigorous examination and anxious scrutiny, it is unnecessary to delve into the decision of the Director.  This decision will only focus on discussing the Board’s decision.

Application out of time

14.It must be pointed out first that the applicant’s intended application for judicial review was made out of time.  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 date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.  In considering whether to extend time, the court will 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: Re Thomas Lai [2014] 6 HKC 1; AW v Director of Immigration [2016] 2 HKC 393.

15.The principles have been further explained by the Court of Final Appeal in the recent case of H v Director of Immigration and AH v Director of Immigration FACV 1 and 2 of 2020, at para 37.

16.In this case, even just counting from the 3-month time limit for the intended application against the Board’s decision which ended on 29 February 2017, the application was late by almost 1 year and 8 months.  The delay in the application against the Director’s decision (assuming it was the applicant’s application) was even longer.  The delay was substantial and excessive.  The applicant did not request extension of time or give explanation for the delay.  I cannot find any good reason for the undue delay.  The delay was inexcusable.

Merits of the intended application

17.Nevertheless, I will also consider the merits of the intended judicial review.  Far from a case with realistic prospect of success, I am of the view that the applicant has no prospect of success at all.

18.In the present case, the Board in fact rejected the applicant’s appeal/ petition on the ground that it disbelieved the applicant and found him “not worthy of credit”.  It disbelieved his accounts of events.  On the factual findings, there would be no factual basis in support of any of the applicable grounds.

19.As explained above, the assessments of evidence and risk of harm are primarily within the province of the Board and the Director.  This court will not interfere with their decisions unless there is a public law ground for the court to do so.

20.The applicant stated no grounds of the judicial review in Form 86.  He mentioned nothing in the form or in the affidavit to suggest how the Board or the Director erred in the public law sense.

21.In the absence of any error of law or procedural unfairness being shown by the applicant, I do not find any reasonably arguable basis to challenge the findings of the Board and the Director.

22.Further, even if one gives his account the most favourable interpretation, the alleged past ill-treatment or experience were of low intensity and frequency demonstrating no real risk of future harm.  The election in 2010 was completed long ago. There is no valid reason why Hernando would still wish to pursue him after so many years.

23.The evidence can hardly establish that the applicant would be at real risk of being subjected to any type of ill-treatment or proscribed harm, if refouled.

24.Both the Director and the Board engaged in a joint endeavour with the applicant and considered all relevant criteria.  They gave the applicant a reasonable opportunity to state his case and enquired into the issues appropriately.

25.There cannot be any criticism of the fairness and reasonableness of the decisions of the Director and the Board.

26.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, irrational findings, or procedural unfairness in either of them.  Nor do I see any failure on their part to apply high standards of fairness in their decisions.

27.For the reasons given, there is no prospect of success in the applicant’s intended application for judicial review.

Disposition

28.In the absence of good reason for extending the period to make the application, I refuse extension of time to apply.  Accordingly, leave to apply for judicial review is refused.

Dated 2 February 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