Batac Resty Lagman v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2204/2019

[2024] HKCFI 3022

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2204 OF 2019

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BETWEEN

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J U D G M E N T

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THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 26 July 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office refusing to extend time for the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

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 came to Hong Kong as a visitor on 19 November 2008 and was allowed to stay for 14 days. He overstayed. He surrendered to the Immigration Department on 11 May 2009. He then lodged a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by the members of the National People’s Army (“NPA”)  because he wanted to quit NPA.

5.According to the applicant, in 1995, he joined the NPA’s activities. In 2004, he decided to quit it. His friends told him that NPA would kill those who quitted because they knew too much about it. He had never been harmed by the NPA physically in the Philippines. He had only received threats from them. However, he decided to devote to missionary work. He learned from his uncle that the NPA people were looking for him. He came to Hong Kong in 2003 or 2004. He was forced to return to the Philippines in 2006 because he was unable to find a job. He did not encounter any problem there. He learned that his paternal cousin was abducted and killed after he quitted NPA. In November 2008, he came to Hong Kong again.

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 because (i)  the risk of being harmed by the NPA was low as there had been no physical injury caused to him by the NPA [11]; (ii)  there had been a long lapse of over 10 years since he quitted NPA, any grudge should have been dissipated [12] (iii)  state protection would be available to him [14]; and (iv)  internal relocation was also viable if he returned to the Philippines [15].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  But he was late. The deadline for him to file the notice of appeal was on 27 December 2014. He filed his notice of appeal on 9 January 2015. His explanation to the enquiry was “I was sick and with high pressure.” He enclosed a medical certificate dated 6 January 2015. He also said that he was detained by the Immigration Department from 6 January 2015 to 24 January 2015.

9.The Board considered his explanation under section 37ZT of the Ordinance. It did not accept his explanation as the medical certificate was later than 27 December 2014, the deadline for him to file the notice of appeal.

10.The Board assessed the strength of the grounds of appeal [10]-15]. It found that the applicant did not have strong grounds of appeal as:

“15. … Even taking his case to the highest, the evidence shows the Appellant had never attained a level of “severity” of pain or suffering whether physically or mentally. The threats given by the supporters of the NPA was only heard from his friends. There is no evidence to show that the supporters of the NPA had intended to harm or hurt the Appellant. There is no evidence to show any government official took part in the NPA. The Appellant left the Philippines for Hong Kong in 2008, there is no substantial evidence showing the supporters of the NPA are still looking for him presently. I find the Appellant failed to establish that there is substantial ground to believe that the Appellant is in danger in the present.”

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

11.The applicant has filed Form 86 dated 2 August 2019 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmation in support of his application, the applicant did not raise any ground to challenge the Board’s Decision.

DISCUSSION

13.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s 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).

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

15.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.”

16.It is obvious that the Board had considered the merits of the applicant’s case. The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded. There is no valid ground from the applicant to challenge the Board’s Decision.

17.There is no reason that the Court should interfere with the Board’s finding of the facts.

18.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

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

The applicant was unrepresented.