Aranas Antonio Azagra v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 951/2019

[2023] HKCFI 1568

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 951 of 2019

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.  The extension of time for the application 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 13 November 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). His application filed on 9 April 2019 is late.[1] The deadline for the application is 13 February 2019. The delay is about 2 months. 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, I shall deal with his application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, 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 last entered Hong Kong on 28 July 2007 and was permitted to remain as a visitor until 29 July 2007. He did not depart and had overstayed since 30 July 2007. On 26 November 2015, he was arrested by the police for overstaying. On 1 December 2015, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by his cousin due to a familial property dispute.

5.In short, the applicant had a land dispute with his cousin Rodrigo in around 2004 when Rodrigo attempted to intrude his land. They entered into a fight during which the applicant was attacked and he received medical treatments afterwards. Rodrigo also threatened to kill the applicant if he reported the incident to the police. As Rodrigo was well connected with both pro-government and anti-government groups, the applicant decided to seek protection outside his country and eventually fled to Hong Kong. Details of his claim are set out at paragraph 7 of the Notice of Decision dated 25 May 2018 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. In elaboration, the Director found that (i) his claimed fear of being killed was not substantial [14]; (ii) it was a private land dispute without state involvement [15]; (iii) his past behaviors showed that his perceived risk of harm was not imminent [16]; (iv) state protection would be available to him [17]-[23]; and (v) internal relocation was a viable option [24]-[25].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 31 July 2018, the Board conducted an oral hearing for his appeal, during which he testified with the assistance of an interpreter [14].

9.On the basis of his mostly consistent and coherent evidence, the Board accepted the core aspects of the applicant’s claim [32]-[39]. It proceeded to consider his claim in light of the applicable grounds. The Board found that there was no evidence that the risk State was involved in this dispute or the government would not offer assistance to the applicant [47]- [52]; [71]-[72]. Further, on the applicant’s own evidence, he intended to return to the Philippines and solve the problem with his cousin [58]. He also conceded before the Board that he could relocate to other area if he could not solve the said problem [61]-[64].

10.In light of 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

11.The applicant has filed Form 86 dated 9 April 2019 for leave to apply for judicial review of the Board’s Decision.

12.In his affirdavit in support of his application, he said that the Board’s Decision is biased and irrational.

DISCUSSION

13.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. He has given no explanation for his delay and his application can be dismissed for this reason alone. However, I shall first consider the merits of the applicant’s case.

14.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).

15.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. The question before this Court is whether the Board was right to refuse extending time for the applicant to file his notice of appeal in accordance with the law and whether its decision complies with the public law requirements.

16.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.”

17.The applicant admitted before the Board that he would be going back to settle the dispute with his cousin and that he could relocate to other area if he was unable to settle the dispute. This is inconsistent with his allegation that the Board was biased and irrational. Therefore, he has no valid reason to challenge the Board’s Decision.

18.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.

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

CONCLUSION

20.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 19^th day of June 2023

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