Lang Ay Ernesto Jr Cabanas v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 744/2022

[2022] HKCFI 3615

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 744 of 2022

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:

1.      Extension of time for the Applicant to apply for leave to apply for Judicial Review be refused; and

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

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 22 August 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). His application filed on 10 August 2022 is late.^[1] I shall deal with this issue below.

2.The applicant did not request a hearing. His application is therefore dealt with on paper pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”).

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 proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.The applicant is a national of the Philippines.  He entered Hong Kong on 29 May 2018 as a visitor and was permitted to stay until 12 June 2018.  He did not depart and had overstayed since 13 June 2018.  On 19 June 2018, he surrendered to the Immigration Department.  On 16 August 2018, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by the family of a murdered victim.

5.In short, the applicant went out with his cousin and uncle to a convenience store one afternoon in August 2017.  They were approached by six to eight men, including the victim.  The applicant stated that he left early as he needed to pick up his daughter.  The next day, his neighbour told him that his uncle and cousin killed the victim and were arrested by the police.  The victim’s family were furious that the applicant was left out.  They wanted him to be arrested as he was at the scene.  They threatened to kill the applicant. Yet, nothing eventful happened before he left for Hong Kong in May 2018 for a visit.  However, while he was in Hong Kong, his mother told him that some men visited their house and asked for the applicant.  Out of fear, he decided to stay in Hong Kong for protection.  Details of his claim are set out at paragraph 6 of the Notice of Decision dated 31 January 2019 by the Director (the “Director’s Decision”).

The Director’s Decision

6.The Director considered the applicant’s claim in relation to the following risks:

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

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“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 way of the Director’s Decision, the Director dismissed the applicant’s claim as the level of risk of harm upon refoulement was assessed to be low.  In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [11]; (ii) there was no evidence showing that the victim’s family had real intention to harm or even kill him [12]; (iii) the culprits were already arrested and charged and there was no evidence that the victim’s family were still looking for him [13]; (iv) his information about the victim’s family was a bare assertion [14]; (v) state protection would be available to him [15]-[17]; and (vi) internal relocation was a viable option [18]-[22].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 30 April 2019, the Board conducted an oral hearing for his appeal, during which he was assisted by an interpreter [6].

9.At the outset, the applicant confirmed before the Board that the dispute with the victim’s family remained a private dispute which was not politically motivated [27].  The Board proceeded to assess his evidence.  It accepted that the applicant was threatened by the victim’s family but nothing had ever happened to him after the incident [35].

10.In these premises, the Board found that there was no evidence to show that the victim’s family posed any threats to him; that the applicant was personally targeted by the victim’s family; that he had suffered any physical or mental harms inflicted by the victim’s family or that the Philippine government would not help him [36].  In fact, state protection was proven available as shown in the country of origin information [49]-[53].  In any event, internal relocation was a viable alternative [74]-[80].

11.For the aforesaid findings, the Board rejected the applicant’s claim and dismissed his appeal.

Application for leave to apply for judicial review of the Board’s Decision

12.The applicant has filed Form 86 dated 10 August 2022 for leave to apply for judicial review of the Board’s Decision.

13.In his affidavit in support of his application, he said that he disagreed with the Board’s Decision and his life is still in danger if he returns to the Philippines.

DISCUSSION

14.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. The deadline of his application is on 22 November 2019. The delay is serious. He has given no explanation for his delay and his application can be dismissed on this basis alone. However, I shall first consider the merits of the applicant’s case.

15.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

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 no valid reason to challenge the Board’s Decision.

19.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.

20.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

21.I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 1^st day of December 2022

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