RESPICIO JAYSON OLAEZ v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1552/2018

[2022] HKCFI 45

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1552 of 2018

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;

Extension of time for the application for Judicial Review be refused &

the application for Judicial Review be dismissed.

Observations for the Applicant:

THE APPLICATION

1.     This is the applicant’s application for leave to apply for judicial review of the Decisions dated 27 February 2017 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).  His application filed on 6 August 2018 is over 17 months late.  I shall deal with this issue below.

2.     The applicant did not request an oral hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with her application on paper. 

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 Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.

The applicant

4.     The applicant is a citizen of the Philippines.  He entered Hong Kong as a visitor on 4 November 2009 but overstayed.  He was arrested on 3 March 2011.  On 5 March 2011, he lodged a torture claim.  Upon the commencement of the unified screening mechanism, his torture claim was taken as a non-refoulement claim and assessed on all applicable grounds. 

5.     The applicant claimed that, if refouled, he would be harmed or killed by four unknown people because he accidently hurt two of them in an incident.  According to the applicant, he went to a small carnival with his friends on 28 August 2009 for gambling.  During the game, four unknown people grabbed his friend’s money and claimed to be theirs.  They got into a fist fight and two of the unknown men got hit by stones with blood on their heads.  The day after, the four unknown men went to the applicant’s house seeking for revenge.  Out of fear, he fled to Hong Kong for protection.  Details of his story are set out in paragraph 6 of the Notice of Decision dated 25 August 2015 of the Director (“Director’s First Decision”) and paragraphs 2-3 of the Board’s Decision.

The Director’s Decisions

6.     The Director considered his application in relation to the following risks:

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

b.     Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“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 the Director’s First Decision, the Director refused his claim on the grounds of Torture risk, BOR3 risk and Persecution risk for the reason that his claim was not substantiated.  The Director found that the level of risk of him being harmed or killed upon refoulement was assessed to be low [11]- [12]; that state protection would be available to him [13] and that internal relocation was an option open to him [14]. 

8.     In a Notice of Further Decision dated 1 November 2017, the Director also rejected the applicant’s claim on BOR2 risk (“the Director’s Second Decision”) for the reason that there was no evidence to show that his right to life would be violated upon his return to the Philippines. 

The Board’s Decision

9.     The applicant lodged an appeal against the Director’s First Decision to the Board on 7 September 2015.  He did not appeal against the Director’s Second Decision.  An oral hearing was conducted on 15 August 2016, during which the applicant elected not to answer questions.

10.     In determining whether the applicant’s story was reliable, the Board stated that it found the applicant’s story to be vague and unreliable.  Hence, he attached no credence to his evidence [5]. The Board listed out its concerns that warrant the applicant’s clarifications at paragraphs 6-10 of the Board’s Decision. Since the applicant chose not to give evidence, the Board was unable to make findings on credibility and dismissed his appeal [12]. 

11.     However, the Board further proceeded to consider the applicant’s claim on the three applicable grounds based on the applicant’s alleged set of facts [14].  It found that there was no state involvement as it was a private dispute between the applicant and the four unknown men [17] and he had never been ill-treated by the authorities [18]-[19].  There was no evidence that the applicant had suffered any physical or mental pain to the minimum level of severity [22].  Thus, his claim on Torture risk failed [23].  Further, the Board made a separate assessment of the issue of internal relocation and concluded that it was a viable option to the applicant since the grudge happened some 7 years ago and he had encountered no hostility when he was in Dangan or Quirino [24]-[29].  For the same reasons, his claim on BOR3 risk and Persecution risk also failed [30]-[39].  Therefore, the Board concluded that, even on the applicant’s own evidence, he had not established a non-refoulement claim.   

Application for leave to apply for judicial review

12.     The applicant filed Form 86 on 6 August 2018 for leave to apply for judicial review of the Board’s Decision.

13.     In his affirmations in support of his application, he said that the Board had disregarded his dangerous situation. 

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 delay is, of course, serious. However, I shall first consider the merits of the applicant’s case.

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

16.     In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“31 (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.     In the hearing before the Board, the consequences of not answering questions from the Board or not giving evidence is quite apparent to the applicant.  The burden is on the applicant to convince the Board that he had a genuine case for non-refoulement.  His attendance is purely on the question of the facts he had alleged before the immigration officer.  The issue was the strength of the evidence that supported the applicant’s case.  The Board did not brush aside his evidence since he did not give evidence.  The Board had analyzed the evidence before him and found that the evidence did not support the applicant’s claim.

18.     The applicant does not have any valid ground 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.     There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

21.     I therefore refuse to extend time for the applicant to apply for his intended judicial review.  Accordingly, I dismiss his application.

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