MOLINA ARMANDO VILLANUEVA v. TORTURE CLAIMS APPEAL BOARD

HCAL 1351/2019

[2023] HKCFI 2338

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1351 OF 2019

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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

1.  Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 14 February 2019 be refused; and

2.  the application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 56-year-old national of the Philippines who last arrived in Hong Kong on 30 October 2006 as a visitor with permission to remain as such up to 13 November 2006 when he did not depart and instead overstayed and was arrested by police nearly 5 years later on 23 September 2011. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to the Philippines he would be harmed or killed by a local politician for failing to help him to be re-elected as the governor of Isabela Province in the Philippines. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Santa, Ilocos Sur, the Philippines. After leaving school, he got married and raised a family with a daughter in his home district by working as a forest guard before coming to Hong Kong to work as a foreign domestic helper in 1992 until 2003 when he returned to the Philippines, and moved with his family to Dangan in Reyna Mercedes, Isabela Province to stay with his in-laws.

3.  In 2004 the Applicant was introduced by his brother-in-law to work as one of the campaign managers for FD Jr, the incumbent governor of Isabela for re-election, but after FD Jr lost the 2004 election, the Applicant was advised by his brother-in-law to hide and stay away from FD Jr for fear of being blamed or held responsible for failing to help him to win his re-election, as FD Jr had been known to kill those who had failed him in the past.

4.  The Applicant did as advised go into hiding and stay away from FD Jr, but after receiving some threatening mails which he suspected were sent by FD Jr, he felt it was no longer safe to remain in the Philippines, and so on 30 October 2006 he departed for Hong Kong where he subsequently overstayed, and after his arrest by the police almost 5 years later in September 2011, he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 2 May 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 31 July 2014 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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”).

6.  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 FD Jr upon his return to the Philippines as low due to the absence of or low intensity and frequency of past ill-treatment from him, that there is no reliable evidence that those threatening letters were sent by FD Jr or of any intention of him to seriously harm or kill the Applicant other than his own suspection and speculation, that in any event any such risk arose from a private personal dispute between the 2 of them without any official involvement 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 107 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 part of the country away from his home district in large cities such as Quezon City where it would be difficult if not impossible for FD Jr to locate him.

7.  On 11 August 2014 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 3 February 2015 before the Board during which he gave oral evidence and answered questions raised of his claim by the Adjudicator for the Board. On 5 June 2015 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision the Board found no reliable evidence of any real threats from FD Jr or his family to harm or kill the Applicant over what was objectively a minor role in FD Jr’s election campaign, that there is no evidence of FD Jr having blamed the Applicant for his election loss or of any adverse interest that FD Jr might still have in the Applicant all these years since he left the country in 2006, and that in any event in the absence of any official involvement that state/police protection would be available to him as well as reasonable internal relocation for him to move safely to other part of the country away from his home district without any risk of being located by FD Jr or anyone that his claim for non-refoulement protection failed on all the applicable grounds.

9.  Meanwhile on 19 December 2016 the Director on his own initiative in writing invited the Applicant to submit any additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”), and after considering further information provided by the Applicant on 3 February 2017 including an undated and anonymous threatening letter, the Director by a Notice of Further Decision 7 February 2017 also rejected the Applicant’s BOR 2 Claim upon finding that those new information submitted by him did not assist or advance his claim, and concluded that he had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR including right to life under BOR 2 being violated upon his return to the Philippines.

10.  On 17 February 2017 the Applicant again lodged an appeal to the Board against the Director’s Further Decision, and for which he attended another oral hearing on 27 November 2018 before the Board without legal representation, during which he again gave evidence and answered questions raised of his claim by the same Adjudicator for the Board. 　On 14 February 2019 his appeal was again dismissed by the Board which also confirmed the Director’s Further Decision upon finding similarly as before that state protection and internal relocation would be available to the Applicant to negate any such risk of his BOR 2 being violated upon his return to the Philippines.

11.  On 20 May 2019 the Applicant filed his Form 86 for leave to apply for judicial review of this second decision of the Board, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date in which he just stated that he rejects the decision as it disregarded his dangerous situation but without providing any relevant details or particulars or elaboration as to how it did so, nor did he request any oral hearing for his application.

12.  By then the Applicant was also out of time with his application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

13.  As the last day of the 3 month-period for him to file his Form 86 fell on 14 May 2019, the Applicant was therefore 6 days late with his application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

14.  In the Applicant’s case, a delay of 6 days may not be regarded as significant, for which he failed to provide any explanation in his affirmation, but given its relative insignificance, I propose to focus on the merits, if any, of his intended application.

15.  However, as noted above, the Applicant has also failed to put forth any proper ground for his intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in either of its decisions being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge or any merits in his intended application.

16.  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.

17.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in the Applicant’s claim if real is a localized one and that it is not unreasonable or unsafe for his to relocate to other part of the Philippines, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

18.  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 their consideration and assessment of the Applicant’s claim under BOR 2 or any of the applicable grounds.

19.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his delay, I refuse to extend time and accordingly dismiss his leave 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