HERRERA HOMER LEONARDO v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 2335/2018

[2022] HKCFI 1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2335 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.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 2 November 2017 refused; and

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

Observations for the Applicant:

1.  The Applicant is a 39-year-old national of the Philippines who first arrived in Hong Kong in late 2007 as a visitor but was later in March 2008 allowed to work as a musician until June 2014 when he applied for change of employment that the authenticity of his supporting documents were suspected and his application was eventually refused, and when he was required by the Immigration Department to leave Hong Kong by 21 January 2016, he raised a non-refoulement claim on the basis that if he returned to the Philippines he would be harmed or killed by the Tau Gamma Phi Fraternity (“the Fraternity”) for intending to join the Government of the then President Arroyo whom the Fraternity were then opposed. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Tayaty, Rizal, the Philippines where he attended the National College of Business and Arts during which he joined the Fraternity in their activities and protests against the Arroyo administration.

3.  After graduation from college the Applicant continued to be involved in the Fraternity’s activities, but in early 2007 when he was encouraged by his family to stand for election to be a Councillor in a local election which was however objected by some of the Fraternity who made death threats against him if he went ahead for the election, but which was not heeded by the Applicant, and although he subsequently lost the election, he was approached by 2 policemen who claimed to be sent by the Fraternity to teach him a lesson that they would put a bullet to his head, and after making the threats, they then left.   

4.  As he became fearful for his life, and on his family’s advice, the Applicant departed the Philippines in late 2007 for Hong Kong where he was subsequently allowed to stay to work as a musician, but in January 2016 when his application for change of employment was refused by the Immigration Department and was required to leave Hong Kong, as he was still fearful of being harmed or killed by the Fraternity upon his return to the Philippines, he therefore raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 25 April 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

5.  By a Notice of Decision dated 2 August 2016 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 the Fraternity upon his return to the Philippines as low due to the absence of or low intensity and frequency of past ill-treatment from them, that the Fraternity was established against violence in university campuses in the Philippines that it is not accepted that they would actually make threats of or carry out acts of violence against the Applicant, that in any event whatever adverse interest they might have in the Applicant would have dissipated after all these years since he departed the country, that no further threats had in fact been made against him during his regular returns to his country during all these years, that in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to upon his return to the Philippines, 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 Philippines away from his home district in large cities where it would be difficult if not impossible for anyone in the Fraternity to locate him.

7.  On 23 June 2017 the Director on his own initiative 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 in the absence of any response from him, the Director by a Notice of Further Decision dated 14 July 2017 also rejected the Applicant’s BOR 2 Claim upon finding 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 Risk being violated upon his return to the Philippines.

8.  By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“Board”) against the earlier decision of the Director, the notice of which was filed on 15 August 2016, but for which he failed to attend the scheduled oral hearing on 31 August 2017 before the Board without any explanation, and in the absence of any response or request for another oral hearing from the Applicant thereafter, the Board proceeded to deal with his appeal in his absence and on paper, and on 2 November 2017 it dismissed his appeal and also confirmed the decisions of the Director.

9.  In its decision the Board accepted the Applicant’s claim of being involved in the Fraternity while in university and that he subsequently stood for election as a Councillor in the local elections, but found no evidence of any real threats from the Fraternity which was in fact contrary to relevant COI which show that the Fraternity was established with the aims to end violence in all university campuses of the country, nor is there any evidence or reason why the Applicant would still be at risk as a result of events which occurred many years ago and that he had over the years returned to his country on a regular basis but without any risk of any threats from anyone or of any ongoing interest in him by those who he claimed to hold a grudge against him, and that he failed to attend his oral hearing so as to clarify and explain the many issues raised of his claim by the Board that it concluded that he had failed to establish any risk of harm from anyone upon his return to the Philippines that his claim for non-refoulement protection failed on all applicable grounds.          

10.  On 24 October 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and put forward the following grounds for his intended challenge:

(1) That the Director and the Adjudicator reached their decisions wrongly in assessing his non-refoulement claim in that they were not fair or reasonable as required by the Wednesbury test in failing to recognize that his right to life must be protected by the criminal law from extra-judicial killings which he may face if deported to his home country;

(2) That the Adjudicator failed to give him sufficient time and opportunity to arrange relevant evidence for his non-refoulement claim as well as his appeal;

(3) That the Director failed to appreciate or give proper weight to the presence of state acquiescence in the Applicant’s case which led to an unfair outcome of rejecting his non-refoulement claim;

(4) That the Director failed to take into account of the fact that the Applicant was tortured at the behest of the state law enforcement agencies and politicians that the state would be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(5) That the Director had listed relevant COI which supported the Applicant’s aversions that the police in his home country would not be able to protect but failed to consider or give weight to such evidence and instead ruled otherwise which was a clear case of unfair attitude shown by the Director which in itself is enough to render his decision void;

(6) That the Director failed to recognize that corruption and incompetency of the administration in the Applicant’s home country is still a very serious problem of which various human rights organizations have compiled reports which stated testament to the Applicant’s assertions; and

(7) That the Director failed to attain the high standard of fairness required by the Wednesbury test in the decision which should be considered unreasonable in the scope of public law.  

11.  By then the Applicant was however seriously 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 day 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 him to file his Form 86 fell on 2 February 2018, the Applicant was therefore more than 8 months 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.

13.  In the Applicant’s case, a delay of more than 8 months must be considered as extremely substantial and inordinate, for which he explained at the hearing of his application that he never received the decision in the mail because he just happened to have moved to a new address without informing the authorities, and it was much later when he reported on his recognizance that he was informed by his immigration officer but by then he was already way out of time with his application.

14.  The record shows that the decision was sent on the same day to the Applicant’s last reported address without being returned through undelivered post, and even if the Applicant did in fact change his address at that time, of which he did not provide any further details or particulars or evidence to corroborate his bare assertions, it was his duty to inform the authorities as soon as practicable of such change, and if he failed to do so and as a result was therefore late with his application, he has only himself to blame. In the circumstances I am not satisfied that the Applicant has provided any good reason for his serious delay.  

15.  As for the merits, if any, of the intended application, those grounds listed above of the Applicant are however all just broad and vague assertions containing several key words and phrases but without any particulars or specifics or elaborations as to how they apply to his case or how the Director or the Adjudicator had erred in their decisions, or what relevancy were torture or state acquiescence to his claim which even on the factual basis of his own case at the highest that he had never been tortured by anyone let alone by any state law enforcement agencies or politicians in the Philippines before he left the country years ago, or in what way did the Director or the Board fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or how did the Adjudicator fail to give him sufficient time or opportunity to present his evidence for his appeal when he himself failed to attend his oral hearing without any explanation. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for his intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, nor do I find any merits in his intended application either.

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 Board rejected his claim for the thorough and detailed analysis and reasoning set out in its decision after he failed to attend the scheduled oral hearing without any explanation, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

18.  Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim if still exists is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of the Philippines, a decision also confirmed by the Board, 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 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 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