ARCEGA IAN PATRICK PEDROSO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2326/2018

[2021] HKCFI 1614

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2326 of 2018

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;

1.  The application for extension of time to file the application for leave to apply for judicial review refused; and

2.  Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application for leave to apply for judicial review of the decision of the Director of Immigration (the “Director”) dated 22 June 2018 (the “Notice”) and the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) dated 12 January 2018 (the “Decision”).   This application was made on 23 October 2018.  It was more than six months late.

2.  The Decision of the Board is reviewable by judicial process but not the decision of the Director in the Notice because there are established statutory procedures of appeal to the Board and the Applicant has invoked those procedures.  The Director’s decisions in the Notice was superseded by the Board’s Decision and is no longer susceptible to judicial review: Re Moshsin Ali[1]. For the benefit of the Applicant, the Court treated his complaints against the Director as directed at the Board also.

Extension of time for applying for leave to apply for judicial review

3.  The court’s leave is required in making an application for judicial review.  Section 21K(6) of the High Court Ordinance provides that where the Court of First Instance considers that there has been undue delay in making an application for judicial review, the court may refuse to grant leave for the making of the application; or any relief sought on the application, if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.

4.  Order 53, rule 4(1) of the Rules of the High Court provides that an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when the grounds for application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.  An application made after three months is deemed to have been made with undue delay.  To obtain extension of time for making an application, the applicant has to satisfy the court that there are credible valid explanations for the delay. 

5.  In AW v Director of Immigration and William Lam[2], the Court of Appeal held that what may constitute a good reason for extending time cannot be defined.  In most cases, this would be a “multi-faceted question” the answer to which would depend on the circumstances of each case. The following factors, which are not exhaustive, are likely to be of significance:

(1)  length of delay;

(2)  explanation for the delay;

(3)  merits of the substantive application;

(4)  prejudice to the applicant if time is not extended, and the prejudice to the respondent and to public administration if a challenge is allowed to proceed out of time; and

(5)  whether the application raises questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.

Length of delay and explanation for the delay

6.  At the hearing, it was explained to the Applicant that the Decision was issued on 12 January 2018 and it was not until more than nine months after that he applied for leave to apply for judicial review.  Hence, his application was more than six months late.  He was asked if he has any explanation for the delay.  He promptly answered “no reason”.  After further attempts, he said he did not know how to apply and had to ask his friend.  When he was told that that could not explain why it took nine months to apply, he said he only received the Decision on 23 October 2018.  That was an obviously hopeless lie.  Moments ago, he tried to explain the time he took in seeking help from his friend to make the application, impliedly he had received the Decision.  But when he knew that explanation was not good enough, he said he received it on 23 October 2018 which was the very date when he made the application.  He could not have received the Decision and on the same day obtained advice from his friends and filed a typed up application.  Besides, it is incredible that the Decision would have taken nine months to reach him.  Given his initial response, the Court found that he has no valid explanation for the delay.  The delay was inordinate.

7.  Before assessing merits of the intended judicial review, the Court set out the background, the Applicant’s case, the Board’s finding and the grounds for application.

The background

8.  The Applicant is a Philippine national.  He entered Hong Kong on 21 October 2015 as a visitor but overstayed since 5 November 2015. He surrendered to the Immigration Department on 19 November 2015.  On 20 June 2016, he sought non-refoulement protection claiming he was at risk of being harmed or killed by Yhong Zamora (“Yhong”), the ex-boyfriend of his girlfriend whom he met in Hong Kong.

9.  In due course, his non-refoulement claims were assessed on all four applicable grounds available under the Unified Screening Mechanism (“USM”), namely: Torture Risk[3]; BOR 3 Risk[4]; Persecution Risk[5]; and BOR 2 Risk[6] grounds.  By the Notice dated 22 June 2017, the Director rejected his claims. On 3 July 2017, the Applicant filed his Notice of Appeal to the Board.  His appeal was dismissed by the Board on 12 January 2018.  He now seeks leave to apply for judicial review of the Decision of the Board.

10.  Having reviewed the papers, the Board decided to hold an oral hearing and informed the Applicant of the date of hearing on 5 December 2017.  In the morning of the hearing, the Applicant informed the secretariat of the Board by telephone that he was unable to attend because he did not have sufficient money to pay for the public transport.  In accordance with Section 15 of Schedule 1A of the Immigration Ordinance, paragraph 8.14 of the Principles, Procedures and Practice Directions of the Torture Claims Appeal Board and paragraph 11.14 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme, the Board informed the Applicant its intention to determine the appeal on paper without a hearing and invited him to provide written explanation together with supporting documents why he failed to attend the hearing.  The Applicant did not respond or provide any supporting documents as to his financial inability to pay for public transport to attend the schedule hearing.  

11.  The Applicant had more than two months’ notice of the scheduled hearing.  The bus fare from his residential address as stated in his Notice of Appeal to the hearing venue was less than $25.  The Applicant receives allowance from the International Settlement Services (“ISS”) and is entitled to allowance for his travelling needs such as attending hearing of the Board.  Having regard to all the circumstances, the Board considered it would have been reasonable for the Applicant to budget his assistance payments to allow him to attend such an important event as the hearing.  Accordingly, the Board found his excuse that he could not afford the transport costs not a valid explanation.

The Applicant’s case

12.  The following account of the Applicant’s case is mainly based on the information in his non-refoulement claim form and written submission which were prepared by him with assistance of the Duty Lawyer Service. 

13.  The Applicant claimed that he met his girlfriend while he was in Hong Kong in October 2015.  They began living together a month later.  His girlfriend would sometimes post their photographs to Facebook. 

14.  His girlfriend came to Hong Kong in 2011.  Between 2008 and 2012, she had a relationship with Yhong from a wealthy and influential family in Luzon whose father is associated with politics.  In 2014, the Applicant’s girlfriend was threatened by Yhong with death.  Hence, she never returned to the Philippines. At the time, Yhong was working in Taiwan.

15.  In August 2016, the Applicant received a death threat from Yhong via Facebook Messenger. Presumably, Yhong had seen their photographs on the Facebook. 

16.  In November 2016, the Applicant also received another death threat on the Facebook Messenger from a stranger who identified himself as JPC whom the Applicant believes is connected to Yhong.

17.  Because of Yhong’s background, the Applicant is afraid that he will be killed as soon as landed at the Philippine airport and he will not have a chance to relocate.  He does not believe the Philippine police will protect him as they are corrupt and only help the rich.

18.  During the screening interview, the Applicant also claimed he had made a telephone complaint to the police about the threats from Yhong.

The finding of the Board

19.  The Board respected the Applicant’s decision not to attend the oral haring and drew no negative inference from that fact.  However, the Board was deprived of the opportunity to discuss its concerns about his case.  Those concerns include:

(1)  whether the Applicant remains in relationship with his girlfriend;

(2)  what is his girlfriend’s status in Hong Kong;

(3)  whether Yhong is still in Taiwan;

(4)  the circumstances of the Applicant overstaying his visa in Hong Kong in October 2015, given he had not begun his relationship with his girlfriend until November 2015;

(5)  the circumstances of the Applicant applying for non-refoulement protection in June 2016, given he did not receive any threat from Yhong until August 2016;

(6)  why the Applicant believes the threats from JPC are connected to Yhong; and

(7)  how Yhong would know the Applicant had returned to the Philippines to be able to kill him at the airport, particularly if Yhong remains in Taiwan; and how the Applicant was able to make a telephone complaint to the police in the Philippines.

20.  The Board also needs to discuss the issues of state protection from the Philippine authorities and whether the Applicant would face undue hardship or it is reasonable for him to internally relocate to another area of the Philippines.  Without the Applicant’s attendance, these issues remain unresolved and the Board would not be able to make findings whether the Applicant faces a real risk of harm from Yhong or JPC.  The Board therefore concluded that on the evidence before it, it did not consider the Applicant faced a real risk of proscribed harm from the Yhong or JPC if he is refouled to the Philippines.  That means the Applicant failed to discharge his burden of proving his entitlement to protection.

Grounds for judicial review

21.  The Applicant advanced the following grounds in support of his application for leave to apply for judicial review:

(1)  the Decision was unreasonable; the Board did not give him sufficient time and chance to arrange relevant evidence as well as his appeal;

(2)  the Director failed to appreciate or give proper weight to the presence of state acquiescence in the Applicant’s case and the Applicant was tortured at the behest of state law enforcement agencies as well as those in high ups of political circle;

(3)  the Director failed to consider arguments and give enough weight to such arguments about weight to be attached to the Country of Origin Information (“COI”); and

(4)  unfair attitude of the Director; and the Director failed to attain the high standard of fairness required by the Wednesbury test.

22.  These grounds have little bearing to the appeal before the Board.  They are obviously copied from other applications.  The only arguable grounds are unreasonableness, irrationality and procedural unfairness which are covered by Grounds (1) and (4). 

Ground (1) - Unreasonableness and irrationality

23.  The peculiar feature in this case is the Applicant’s refusal to attend the hearing on the excuse that he could not afford the transport costs.  It was precisely because of his non-attendance that the Board came to the conclusion that the Applicant was unable to prove his entitlement to non-refoulement protection.  The Board set out its concerns about the Applicant’s case and the various issues which it wished to explore with him.  These concerns are very real and, if unresolved, the Board would not be able to come to any conclusion about the Applicant’s claims.  A very important concern is why it was possible for the Applicant to raise a non-refoulement claim in June 2016 two months before the threat was delivered by Yhong.  This concern cast real serious doubt on his credibility and the genuineness of his fear and risk.  With these concerns and issues unresolved, the Board could not find in favour of the Applicant. 

24.  As the Applicant was unwilling to attend the hearing saying that he could not afford the transport costs, the Board invited him to make a written submission and to give an explanation for his failure to attend.  But the Applicant did neither.  In the circumstances, was it reasonable and fair for the Board to proceed with its deliberation?

25.  While the Director and the Board are under a duty to make a joint endeavour with the Applicant to ascertain and evaluate the facts in support of the Applicant’s entitlement to protection, the burden of proving the factual case in support of his claim is nevertheless on the Applicant.  The Board and the Director cannot undergo the joint endeavour without the cooperation of the Applicant.  An asylum seeker’s obligations in this respect are set out in UNHCR Handbook on the Procedures and Criteria for Determining Refugee Status.  These obligations include:

(1)  To tell the truth and assist the examiner to the full in establishing the facts of his case.

(2)  To make an effort to support his statements by any available evidence and give a satisfactory explanation for any lack of evidence.  If necessary, he must make an effort to procure additional evidence.

(3)  To supply all pertinent information concerning himself and his past experience in as much detail as is necessary to enable the examiner to establish the relevant facts.  He should be asked to give a coherent explanation of all the reasons invoked in support of his application for refugee status and he should answer any questions put to him.

26.  Here, the Applicant sought to appeal the decision of the Director in the Notice.  The Board invited him to attend the oral hearing, but he refused.  He gave an excuse which the Board rightly held was not a valid reason.  Yet, the Board gave him further opportunity to make a written submission and to give another explanation for his non-attendance.  The Applicant did neither.  He is far from performing what he is obliged to do in order to qualify for protection from the international community.  He cannot expect the host country to go all out of its way to prove his case when he was too lazy to do so himself or because he did not wish to expose himself to cross-examination.  On the fact, there is no truth in his allegation that the Board did not give him sufficient time and chance to arrange relevant evidence as well as his appeal.  It was his choice not to attend or to make submission.  In the circumstances, it is not unreasonable for the Board to proceed with determination on paper. There cannot be any criticism of the fairness and reasonableness of the decisions of the Board.

Ground (2) – state acquiescence

27.  Under this ground, the Applicant complained that the Board failed to appreciate or give proper weight to the presence of state acquiescence that he was tortured at the behest of state law enforcement agencies as well as those in high ups of political circle.  On the Applicant’s own case, he was out of the Philippines and is in Hong Kong.  He only saw the threat on Facebook.  He never received any torture while he is in Hong Kong.  There is just no room for this ground to stand. 

Ground (3) – weighting for COI

28.  Under this ground, the Applicant complained that the Board erred in allotting weight to the COI.  In fact, the Board had not considered the COI.  It was the Board’s intention to discuss the issues of state protection from the Philippine authorities and whether the Applicant would face undue hardship or it is reasonable for him to internally relocate to another area of the Philippines.  As the Applicant did not attend, the Board’s intention was frustrated.  The Board could not decide these two questions. It did not find it necessary to do so because the Applicant failed the hurdle of proving his factual case of fear and risk.  Hence, the Board needed not consider whether state protection is available and whether internal relocation is a viable option.  The Board did not have to allocate any weight to any of the COI.  There is no substance in this ground.

Ground (4) – unfair attitude and breach of the high standard of care

29.  Under this ground, the Applicant complained that the Board displayed an unfair attitude towards him and failed to attain the high standard of fairness required by the Wednesbury test.  He gave no particulars of the unfair attitude or breach.  It is not his complaint that the Board should have held another oral hearing and invited him to attend.  In fact, if he refused to budget $25 to attend on the first occasion, he would for the same reason refuse to attend on any rescheduled hearing for the same reason. Anyway, he was given the opportunity to make written submission, which he also failed to take advantage of.  There is no substance in this ground.

Prospect of success of the intended judicial review

30.  The role of the court in judicial review is not to re-assess the non-refoulement claim afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[7].

31.  Having rigorous examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; and observed a very high standard of fairness.  It gave clear reasons for its finding that the Applicant does not face a real risk of proscribed harm from Yhong or JPC, if refouled.  On that basis, it found that the Applicant failed to prove his claim for non-refoulement protection under any of the four applicable grounds.  The Board’s Decision was utterly without fault. 

Prejudice to the respondent

32.  As for prejudice to the proposed respondent, it is unlikely that this issue would be explored in an ex parte application for extension of time.  But it would take little to persuade the court the prejudice to the proposed respondent and to public administration if a challenge is allowed to proceed after such a gross inordinate delay of half a year.  The delay is by itself an abuse of the process of the court and the non-refoulement protection arrangement.  To allow the challenge to proceed would encourage other claimants to indulge in such abuse.  It would cause unnecessary waste of judicial and public resources and delay the genuine non-refoulement claimants’ access to the court.  It would render it difficult for the Director to perform his duty of maintaining immigration control.  Above all, it would make it difficult or unduly burdensome for Hong Kong to honour its international obligations under the various conventions to protect people from persecution, torture and other cruel, inhuman or degrading treatment or punishment.  This application does not raise any questions of general public importance.  It may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

No questions of general public importance

33.  The application does not raise any questions which are likely to have to be resolved by the court in any event.

Conclusion

34.  The Applicant was more than six months late in making the application.  The delay was inordinate.  He could offer no valid explanation for the delay.  Having fully considered the merits, the Court was of the view that the intended judicial review had no prospect of success.  It would be a futile exercise of its discretion to grant extension of time to enable the Applicant to apply for a judicial review which is bound to fail.  To allow such an un-meritorious challenge to proceed would be prejudicial to the intended respondent and the administration.  The application does not raise any questions of general public importance.  Accordingly, the application for extension of time to file the application for leave to apply for judicial review and the application for leave to apply for judicial review are refused.

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

[1] [2018] HKCA 549

[2] CACV 63/2015, (unreported) 3 November 2015

[3] risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[4] risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[5] risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[6] risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[7] [2018] HKCA 524 at para 14(1)