GARCIA DENNIS CASENAS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1971/2019

[2024] HKCFI 2494

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1971 OF 2019

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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 2 July 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Notice of Further Decision dated 13 April 2017 (“the Board’s Second 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 arrived in Hong Kong on 13 March 2011 as a visitor. He overstayed since 28 March 2011. On 29 February 2012, he was arrested by police and was convicted of the offence of overstaying. He lodged his non-refoulement claim by written signification on 20 March 2012 for the reason that, upon refouled, he will be harmed or killed by the relatives of Raul Leling and Leo Malabanan as he had witnessed the murder of Leo Malabanan in which Raul Leling was suspected to be involved. On the one hand, it is his case that the family of Leo Malabanan wanted to harm him for his refusal to testify against Raul Leling in any murder trial against him, and on the other hand he feared retribution from the family of Raul Leling were he to testify against him.

5.  Raul Leling and Leo Malabanan were rival candidates for the post of Mayor in the upcoming election. On 1 November 2010, the applicant alleged that he was riding a motorcycle on a highway where he saw the bodyguard of Raul Leling in a private car shoot dead Leo Malabanan, who was riding another motorcycle in front of him. Leo Malabanan’s family went to his home to request him to give evidence in court as a witness. He refused. On the other hand, Raul Leling’s people threatened that they would kill him if he gave evidence as a witness against Raul Leling. In the circumstances, he left the Philippines for Hong Kong.

6.  Details of his claim are set out at paragraph 6 of the Notice of Decision dated 7 May 2015 (“the Director’s Decision”) and paragraph 8-18 of the Board’s Decision.

The Director’s Decision

7.  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”)[in the Director’s Notice of Further Decision dated 13 April 2017 (“the Director’s Further Decision”)];

(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”).

8.  By way of the Director’s Decision, the Director dismissed the applicant’s claim on Torture risk, BOR 3 risk and Persecution risk. In elaboration, the Director found that (i) the absence of ill-treatment from the relatives of Leo Malabanan and from Raul Leling in the past is indicative of a small future risk of harm upon his return to the Philippines [12]-[13]; (ii) state protection will be available to him in the Philippines [14]; (iii) he did not receive any direct threat from his enemies [15]; and (iv) internal relocation is viable [16]-[19].

The Board’s Decisions

9.  The applicant appealed the Director’s Decision to the Board. On 27 July 2016, the Board conducted an oral hearing for his appeal.

10.  He had given evidence before the Board. Having considered the evidence, the Board found that his evidence to be vague, inconsistent and generally lacking credibility [30]-[36]. The Board had also taken into account that he did not seek protection until over one year after his arrival in Hong Kong, which damaged his credibility [37].

11.  For the reasons above, the Board dismissed his appeal and confirmed the Director’s Decision. This is the Board’s First Decision.

12.  The applicant did not apply for judicial review of the Board’s First Decision.

13.  The applicant filed the notice of appeal against the Director’s Further Decision. However, time for him to file the notice of appeal expired on 4 May 2017 and it was not until 22^nd May 2017, the Board received his notice of appeal.

14.  The reason the applicant gave for the delay is that he did not receive the Director’s Further Decision until 2 days beforehand, and he had been told of this by the landlady.

15.  The Board did not accept his explanation and, by the Board’s Second Decision, refused to extend time for him to file the notice of appeal.

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

16.  The applicant has filed Form 86 dated 12 July 2019 for leave to apply for judicial review of the Board’s Second Decision.

17.  In his affidavit in support of his application, the applicant did not raise any specific ground to challenge the Board’s Second Decision.

DISCUSSION

18.  The question before the Court is whether the Board was correct to refuse extension of time for the applicant to file his notice of appeal.

19.  The Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377, 2 April 2019, in a case where the applicant was late in filing his notice of appeal to the Board and he had given no reason for such delay, held that the Board should evaluate all the circumstances of the case with a view to dealing with the application. That is to say, the Board should consider the merits of the case on the evidence and materials available to it.

20.  It is clear the Board had considered the merit of the case as the same Board had considered the applicant’s claim on Torture risk, BOR 3 risk and Persecution risk and it had dismissed the applicant’s appeal against the Director’s Decision on those issues. His claim on BOR 2 risk relies on the same facts.

21.  His claim on BOR 2 stands no chance of success. The Court of Appeal in in Kulwinder Kaur v Director of Immigration and Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2022] HKCA 48, 7 January 2022, held:

“59. … upon determining that there is no BOR 3 risk, there is no arguable ground for any BOR 2 risk: see AA v Sweden (2017) 64 EHRR 20 at [52] and [96]; RM v Gerard Paul Muttrie Esq (unrep., HCAL 166/2015, 3 March 2016) at [52].”

22.  Therefore, it is clear that there is no realistic prospect of success in the applicant’s intended application for leave to apply for judicial review of the Board’s Second Decision.

DISPOSITION

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