Case Document

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HCAL 307/2024

[2024] HKCFI 1247

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNO 307 OF 2024

BETWEEN
	Rafael, Alfonso Binbinen	Applicant
	and
	Torture Claims Appeal Board	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 the documents only; or

consideration of the documents and oral submissions by the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

1. Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 23 January 2020 be refused; and

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

Observations for the Applicant:

1.The Applicant is a 43-year-old national of the Philippines who last arrived in Hong Kong on 14 January 2015 as a visitor with permission to remain as such up to 28 January 2015 when he did not depart and instead overstayed, and on 1 September 2015 he surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if he returned to the Philippines he would be harmed or killed by a former congressman for exposing the congressman’s involvement in polluting the river of his home village. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in a village in Tublay, Benquet, the Philippines. While at school he together with his friends formed an organization to help the local community and organizing various activities and charities for them.

3.In 2002 the Applicant moved away from his home village to live in the cities to run his own business but returning to his home village from time to time to participating in his organization’s activities.

4.In 2013 he returned to his home village to run a boutique selling clothes imported from Hong Kong, during which he together with his organization discovered acts of pollution committed by some mining companies operating in the neighbourhood which had seriously polluted the river of his home village, and when they found out that those mining companies were owned by Nicasio, the former congressman of Baguio City, they confronted him about the pollution and made a complaint to the authorities which then launched their own investigation and subsequently charged Nicasio for an offence regarding the pollution.

5.One day in December 2014 while the Applicant was in Hong Kong purchasing goods for his business, he was informed by his parents that some unknown men had come looking for him but without giving any explanation or reason why they were looking for him, and upon returning to his home village and after making some enquiries, the Applicant suspected that those men were sent by Nicasio to harm him due to the complaint by his organization earlier made against Nicasio over the pollution of the river in the village.

6.In January 2015 when the Applicant again travelled to Hong Kong to purchase goods for his business, he was informed by his father that those men had come again looking for him, as the Applicant became concerned for his own safety and was afraid to return to the Philippines, he therefore overstayed in Hong Kong and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 6 January 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.By a Notice of Decision dated 7 April 2017 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

8.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from Nicasio and his men upon his return to the Philippines as low due to the absence of any past ill-treatment from him or of any threats which could be linked to Nicasio, that there is no evidence of any real intention of Nicasio to harm or kill him or that those men were sent by Nicasio to harm him other than his own suspicion or speculation, that in any event even if such risk were real that it arose from some personal dispute between them without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in the Philippines with a large population of 102 million people spread across a vast territory of more than 300,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home district in large cities such as Manila where it would be difficult if not impossible for anyone to locate him.

9.On 19 April 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 28 November 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 23 January 2020 his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.In its decision the Board accepted the Applicant’s claim of fear of harm from the former congressman Nicasio for exposing his involvement in causing pollution to the environment of his home village but found no reliable evidence of any real intention of Nicasio to go after him or to take revenge against him over the matter, and that in any event Nicasio is no longer a congressman and with no political influence that in the absence of any evidence of official involvement that state or police protection would be available to the Applicant upon his return to the Philippines if resorted to as well as reasonable internal relocation alternatives for him to move safely to other parts of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

11.On 9 February 2024 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for relief was given in his Form or in his supporting affirmation of the same date other than a regurgitation of his claim as before without putting forth any proper ground for his intended challenge.

12.By then the Applicant was also seriously out of time with his application, as 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 day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

13.As the last day of the three-month period for him to file his Form 86 fell on 23 April 2020, the Applicant was therefore some 3 years and 9 months late with his application, and in considering whether to extend time, the Court shall 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: AW v Director of Immigration [2016] 2 HKC 393.

14.In the Applicant’s case, a delay in excess of 3 years and 9 months must be considered as extremely substantial and inordinate, for which he explained in his affirmation that it was then in the middle of the Covid-19 pandemic that he was unable to leave home to file his Form 86, while the courts had at times also been closed, and that he was then also suffering from all sorts of medical conditions and ailments including high blood pressure and hypertension as well as difficulty in walking that by the time he was eventually able to do so and filed his Form 86, he was already out of time.

15.The record shows that the Board’s decision was sent on the same day of 23 January 2020 to the Applicant’s then reported address without being returned through undelivered post, and given the fact that the courts had only been closed down for a very brief period due to the pandemic, while his alleged medical conditions even if true, and there is no supporting medical report or documentary evidence produced by the Applicant at all, that they could not have prevented him from filing his Form 86 within the required period. In the circumstances I am not satisfied that the Applicant has provided a good or valid justification for his such serious delay.

16.As for the merits, if any, of his intended application, as noted above that the Applicant has also failed to put forward any proper ground for his intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis or merits in his intended application either.

17.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: ReLakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst vDirector of Immigration [2018] HKCA 524.

18.In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in his claim if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of the Philippines, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK vJenkins & Anor [2013] 1 HKC 526.

19.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 or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

20.Moreover, the Applicant recently on 18 April 2024 filed an affirmation requesting to withdraw his application as he now wants to return to his home country to deal with his problem by himself.

21.In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation of his wish to return to his home country, I refuse to extend time and accordingly dismiss his leave application.

Dated the 9^th day of May 2024

(Chung Lai Fan, Christine)
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 9 May 2024 Rafael, Alfonso Binbinen 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 9 May 2024 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 6888/17/4/164/F366 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 3101/16 (formerly RBCZ 12556/16) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)