PALAO RONALD DE JESUS v. TORTURE CLAIMS APPEAL BOARD

HCAL 1027/2018

[2019] HKCFI 2353

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1027 of 2018

 Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

1.  an extension of time for the application for leave to apply for Judicial Review against the decision of Torture Claims Appeal Board made on 15 March 2017 refused; and

2.  leave to apply for Judicial Review dismissed.

It is further directed that:

3.  if the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

4.  when filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

5.  the court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

6.  if the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

7.  liberty to apply.

Observations for the Applicant:

1. The Applicant is a 39-year-old national of the Philippines who arrived in Hong Kong on 9 February 2010 with permission to remain as a visitor up to 23 February 2010 when he did not depart, and instead overstayed until 9 March 2010 when he surrendered tothe Immigration Department and raised a torture claim, later taken as a non-refoulement claim,on the basis that if he returned to the Philippines he would be harmed or killed by the family of the murder victim for which they thought he was responsible.  He was subsequently released on recognizance pending the determination of his claim.

2. The Applicant was born and raised in Hagonoy, Bulacan, the Philippines.  After leaving school he worked as a welder and got married with a family of three children.

3. One day in 2004 he was arrested by the police in Bulacan for the murder of someone whom he had never met, and although he was subsequently acquitted by the court after a trial, the family of the deceased still believed that he was the murderer and had threatened to kill him in revenge, and as he heard that the father of the deceased had connections with the New People’s Army which had been conducting guerrilla warfare against the Philippines government and was regarded as a terrorist group, the Applicant felt that his life was in danger and therefore fled to Nueva Ecija to take shelter at a friend’s place before moving to his father’s home in Hagonoy where he stayed for about a year without incidents.

4. In 2005 he moved back to Nueva Ecija and stayed for the next five years without incidents, but when he heard that the family of the deceased were still looking for him, he felt it was not safe to remain in the Philippines, and therefore departed in February 2010 for Hong Kong where he overstayed and subsequently raised his torture claim which was later taken as a non-refoulement claim upon the commencement of the Unified Screening Mechanism, for which he completed a Non-refoulement Claim Form on 10 August 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5. By a Notice of Decision dated 24 September 2015 the Director of Immigration (“the 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 (“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 all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from the deceased’s family to the Applicant upon his return to the Philippines as low due to the absence of any past ill-treatment from them, that in the absence of 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 101 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 work experience to move to other part of the Philippines away from his home district in large provinces such as Davao where it would be difficult if not impossible for the deceased’s family to locate him.

7. By a Notice of Further Decision dated 10 May 2017 the Director again rejected theApplicant’s claim in the absence of any response from him to an earlier invitation to submitadditional 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”).

8.  Meanwhile the Applicant had lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, for which the Board did not conduct any oral hearing and dealt with the appeal on paper in the absence of the Applicant. On 15 March 2017 the Board dismissed the appeal and confirmed the Director’s decision.

9.  In its decision the Board accepted the factual basis of the Applicant’s claim without reservation that he had received death threats from the family of the murder victim,but found that both state protection and reasonable internal relocation alternatives are available to the Applicant that it would not be unreasonable or too harsh for him to safely relocate to other parts of the Philippines that his non-refoulement claim for protection in Hong Kong failed on all applicable grounds.  

10.  On 6 June 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

 (1) procedural impropriety in failing to give him an opportunity to present his case in an oral hearing in breach of the principle of procedural fairness in assessing his claim;

 (2) procedural impropriety in its failure to consider the concept of extended state acquiescence in the consideration of his claim; and

 (3) procedural impropriety in its failure to conduct a critical analysis of the relevant COI materials in assessing his claim, failure to provide adequate reasons as to why the COI materials were in support of its decision, and failure to consider the Applicant’s fear that he would face a real risk from his enemies if he were refouled to his home country.  

11.  By then the Applicant was of course seriously out of time with his application, as Order 53, rule 4(1) of the High Court Ordinance, Cap 4 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.

12.  As the last day of the three-month period for the Applicant to file his Form 86 fell on 15 June 2017, he was therefore almost 12 months late with his intended 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: see Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393.

13.  In the Applicant’s case, a delay of almost 12 months must be considered as very substantial or excessive, for which he explains that he never received the Board’s decision which he believes was sent to his former address stated in his Notice of Appeal, but as he had thereafter moved to another address, he was therefore unaware of the decision until June 2018 when he reported to his immigration officer that he was told of the decision when by then he was way out of time with his application for judicial review.

14.  As it was clearly the duty of the Applicant to inform the relevant authorities promptly of any change to his address, and if he failed or neglected to do so, he has only himself to blame for not receiving the Board’s decision earlier to enable him to file his Form 86 withintime, and as such I am not satisfied that he has provided any good reason for his serious delay.

15.  More importantly, I do not find any of his grounds reasonably arguable or any merits in his intended application, as they are all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board had erred in its decision,or in what way did the adjudicator fail to take into account relevant COI or being selective or improperly rely on irrelevant COI, or why the concept of extended state acquiescence was relevant to his claim.

16.  As for his complaint of not being given an oral hearing before the Board, as has been held by the Court of Appeal, there is no absolute right to an oral hearing, as the question must depend on the standards of fairness required, the nature of the decision-making process in question, the procedural history of the matter including whether there has been an oral hearing before, the interest at stake and the importance of the decision, the issues involved and how the presence or absence of an oral hearing would affect the quality of the opportunity to make worthwhile or effective representations: ST v Betty Kwan [2014] 4 HKLRD 277 at para 26.

17.  As explained in its decision [19] – [25], the Board had accepted the factual basis of the Applicant’s claim without reservation, and upon being satisfied that there were no other issues that would require to be dealt with in an oral hearing, it was in my judgment entitled to decide in the circumstances that no useful purpose would be served by holding such a hearing, and I do not find any procedural unfairness or breach of high standards of fairness in the Board’s decision.

18.  The fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim is a localized one and thatit is not unreasonable or unsafe for him 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.

19.  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.

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

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