Case Document

100%Judiciary

HCAL 2623/2018

[2021] HKCFI 1516

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2623 of 2018

BETWEEN

	Manuel Rafael Jr Kalaw, alias Rafael K Manuel Jr	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 Applicant being absent in open court;

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

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review of the Decision dated 30 October 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). His application filed on 21 November 2018 is late. I shall deal with this issue below.

2.The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with his application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (the “Director”) is the interested party.

The applicant

4.The applicant is a Filipino national. He came to Hong Kong as a visitor in May 2004. He overstayed and was arrested by police on 9 June 2014. He lodged his non-refoulement claim with the Immigration Department by a written signification dated 25 September 2014.

5.He claimed that if refouled, he would be harmed or killed by the loan shark because of his default in the loan repayment. He had to borrow money from the loan shark for his mother’s medical expenses. However, he was unable to pay the interest. The loan-shark called him and threatened him that if he was unable to repay the loan, he would be killed when he returned to the Philippines. Details of his story are set out in paragraph 7 of the Director’s Decision described below.

The Director’s Decision

6.The Director considered his application in relation to the following risks:

a. risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

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 (“Refugee Convention”) (“Persecution risk”).

7.By Notice of Decision dated 9 March 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated. The Director found that the level of risk of him being harmed or killed by the loan-shark if he returned to the Philippines was assessed to be low [12]; that state protection was available to him [19] and internal relocation was an option open to him [23].

The Board’s Decision

8.The applicant appealed against the Director’s Decision. He attended the hearing before the Board on 11 June 2018.

9.By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision. The Board gave its reasons and concluded at paragraph 62 of its Decision:

“It is not possible to reconcile the Appellant’s testimony and the evidence in his NCF [Non-refoulement Claim Form], and on occasion his testimony was internally inconsistent. The Appellant indicated that he was confused and I do not find his NCF or testimony reliable. Based on Kaja, I am not willing to attach any credence to evidence regarding the loan payments, the method of payment, phone calls from the loan sharks or threats by them….”

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 21 November 2018 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, he said that the Board’s Decision is really a mental torture for him. He cannot sleep well at night. It is a reminder that he will be killed at any time.

DISCUSSION

12.As mentioned in paragraph 1, this application is late. In AW v Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall first consider the merits of the applicant’s case.

13.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

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

“13.… …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.”

15.His grounds in support of this application do not assist his application. Since the Board has rejected his evidence, he has no factual basis in support of his claim.

16.The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

17.There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.

CONCLUSION

18.I therefore refuse to extend time for the applicant to apply for leave to apply for his intended judicial review. Accordingly, I dismiss his application.

Dated the 3^rd day of June 2021

	(M.O. WONG)(Ms)
	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:
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 3 June 2021 Manuel Rafael Jr Kalaw allias Rafael K Manuel Jr 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 3 June 2021 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 6635/17/3/290/F361 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 182/17 (Formerly RBCZ 3002002/14) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)