Pol Ocan Christopher Albaten v. Torture Claims Appeal Board

HCAL 643/2025

[2025] HKCFI 1943

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 643 OF 2025

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:

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.The Applicant is a 43-year-old national of the Philippines who arrived in Hong Kong on 14 April 2018 as a visitor with permission to remain as such up to 28 April 2018 when he did not depart and instead overstayed, and almost 2 years later on 13 March 2020 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 the terrorist group New People’s Army (“NPA”) for quitting the group. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Kayan, Tadian Mountain Province, the Philippines. After leaving school he worked as a farmer to make his living, and raised a family with 3 children with his girlfriend in his home village.

3.In 2016 he was on several occasions approached by a group of the NPA to join their insurgency against the government, but to which the Applicant always refused.

4.One day in May 2017 the same group of NPA came to the Applicant’s home to again invite him to join their group, but this time they showed him their guns, and fearing that they would harm his family, the Applicant therefore agreed to go with them to their campsite in the neighboring province, and pretended that he was willing to undergo training with them.

5.A few days later the Applicant was allowed to return to his home village to harvest his crops on his promise to return to them afterwards, but upon returning to his home the Applicant packed his belonging and then fled to Benguet Province to hide from the NPA, but when he was later told by his girlfriend that some NPA people had come to his home village looking for him, the Applicant felt it was no longer safe to remain in the Philippines, and so on 14 April 2018 he departed for Hong Kong where he overstayed and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 27 August 2020 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 24 September 2020 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”).

7.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 those NPA people upon his return to the Philippines as low due to the absence of any past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill him other than just mere hearsays and speculations, that in any event in the absence of any official involvement and that NPA is regarded as a terrorist group by the Filipino government 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 109 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.

8.On 5 February 2025 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but as it was filed outside the 14-day period required under Section 37ZR (1) of the Immigration Ordinance, and in pursuance of Section 37ZT (2) of the Ordinance as amended on 1 August 2021, the Board proceeded to decide, as a preliminary decision without a hearing, whether to allow the late filing of the Applicant’s notice of appeal by taking account only of the statement of reasons stated by the Applicant in his application for the late filing together with the evidence in support of the reasons.

9.By a Decision dated 14 February 2025, the Board refused to allow the late filing of the Applicant’s notice of appeal upon finding that it was some 4 years and 4 months late, that such delay was extremely substantial and inordinate, that his explanation of having lost his ID and was afraid to go to the police was unsubstantiated by any evidence and even if true is wholly unacceptable, and that he failed to show that he had exercised all or any due diligence to file his notice of appeal in time, and had thus failed to satisfy the requirements under Section 37ZT (3) of the Ordinance for leave to be granted for its late filing.

10.On 13 March 2025 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date in which he just rejects the decision as it disregarded his dangerous situation, and that the Director also failed to adequately appreciate or assign proper importance to the presence of State Acquiescence in his case which led to an unfair outcome of the rejection of his non-refoulement claim, but without providing any relevant or necessary details or particulars or elaboration in support of such complaints, nor did he request any oral hearing for his application. As such, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Director or in his application for the late filing of his appeal to the Board or in their decisions being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge of the Board’s decision for refusing to allow the late filing of his appeal, or for that matter of the Director’s decision in rejecting his non-refoulement claim.

11.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: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

12.In the Applicant’s case, the Board refused to allow the late filing of his extremely late notice of appeal by correctly applying the law under Section 37ZT of the Ordinance as amended and for the thorough and detailed analysis and reasoning set out in its decision, and in the absence of any error of law or procedural unfairness in his application to the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.

13.Furthermore, the fact is that it has been correctly established by the Director in his decision that the risk of harm in the Applicant’s claim even if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of the Philippines, a decision which has effectively and finally determined his claim after his late appeal had been refused by the Board, there is therefore simply no justification to afford the Applicant with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

14.In the premises, and 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 the Director’s consideration and assessment of the Applicant’s claim or in the Board’s decision to refuse the late filing of his notice of appeal.

15.For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his application.

Dated the 13^th day of May 2025

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