BOLANOS BRUDENCIO JAO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 310/2022

[2022] HKCFI 2528

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 310 of 2022

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 to apply for leave to apply for Judicial Review be refused; and

2.  Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 for leave to apply for judicial review of the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (the “Board”) dated 19 August 2021 (the “Decision”) refusing his application for late filing of his notice of appeal (the “Decision”) against the decision of the Director of Immigration (the “Director”) in his notice of decision dated 15 March 2021 (the “Notice”). Though the Director is named as a proposed interested party, no relief is sought in respect of the Notice or any decision of the Director. 

2.  The Applicant is a Filipino national, now aged 72.   He entered Hong Kong on 2 April 2018 as a visitor and was permitted to remain until 16 April 2018.  He was arrested on 9 April 2018 and later convicted of the offence of using a false instrument.  He was sentenced to four years of imprisonment on 30 December 2019.  On 17 January 2021, he raised a non-refoulement claim.

3.  In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4].  By a Notice of Decision dated 15 March 2021, the Director rejected his claims.  He lodged his undated notice of appeal by post which was received by the Board on 4 June 2021.  He was more than two months late in bringing the appeal.  By its Decision dated 19 August 2021, the Board refused to allow the late filing of the Notice of Appeal. 

4.  On 6 May 2022, the Applicant sought leave to apply for judicial review of the Decision of the Board.  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.  The application was made eight and half months after the date of the Decision.  It is five and half months out of time.  To obtain extension of time for making an application, the applicant has to satisfy the court that there are at least credible valid explanations for the delay and good prospect of success in the substantial application: Jagg Singh and Torture Claims Appeal Board / non-Refoulement Claims Petition Office^[5].

5.  At the hearing, he attributed the delay to his forgetfulness arising out of his old age and to the fact that he is in prison and the prison staff did not actively help him.  His explanation was very general and unparticularised.  Not only was he late in this application, he was also late in his appeal against the Notice which led to this application.  As was held by Litton NPJ in Po Fun Chan v Winnie Cheung[6], where an applicant is many months out of time, leave to apply out of time may be refused “however strong the complaint might otherwise be”.  Nevertheless, the Court proceeded to consider merits of his application.

The Applicant’s case

6.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer.

7.  The Applicant was born in Manila, the Philippines.  He is single and has received 15 years of formal education.  He has 49 years of working experience as a salesperson and as agent for the Marcos Group.

8.  He claimed that in around 2000, Armando Marcos (the grandson of the late Ferdinand Marcos and the former President of the Philippines) told him that he was in fact a nephew of Ferdinand Marcos and recruited him to the Marcos Group which is composed of friends, family members and relatives of Ferdinand Marcos.  The objective of the Marcos Group is to collect the wealth left by Ferdinand Marcos around the world and to distribute it to save humanity. 

9.  On around 1 August 2017, the Applicant’s superior in the Marcos Group gave him a set of documents concerning funds totalling US$943 billion (the “Documents”) and told him that the funds were bequeathed to him to build a better world.  He claimed that US$500 billion of the funds were to be donated to the Belt and Road Initiative of the People’s Republic of China and the remainder would be used for the welfare and benefits of the Philippines.

10.  In late 2017, a group of five people stopped him at a bus stop and told him to support the Anti-Marcos Group which was associated with the Cory Aquino family.  They released him after realizing that he was not carrying the Documents with him.

11.  In late January 2018, while he was having lunch with another member of the Marcos Group, named Joe, a group of around 10 members of the Anti-Marcos Group who sat at another table next to him drinking beer told him to stop processing Ferdinand Marcos’ money otherwise he would be in big trouble.  Feeling they were in danger, the Applicant and Joe fled.

12.  The Applicant received ten other similar verbal threats from the Anti-Marcos Group on different occasions but he was never physically harmed by them.  He did not file any report with the police because he did not believe the police would take action for such verbal threats.

13.  After arriving in Hong Kong, his family member told him that some Anti-Marcos Group people started looking for him every week since April 2018. 

The finding of the Board

14.  The Board refused to allow the late filing of the notice of appeal under s37ZT of the Immigration Ordinance (the “Ordinance”).  His only explanation for the delay was that he was old and forgetful.  The Board did not accept his explanation was a good reason for the delay.

15.  The Board also found there was no merit in the intended appeal.  Even on the basis of the case as asserted by him, the Applicant had at most been verbally threatened on more than 10 occasions but without being harmed at all.  This suggested that the alleged threats were just empty threats.  The Board found that he would not face any of the proscribed risks of harm upon his return to the Philippines.  Therefore, the Board found that the requirements in section 37ZT were not satisfied and refused to allow the late filing of the notice of appeal.

The applicable legal principle

16.  The role of the court in judicial review is not to re-assess the non-refoulement claims 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].

Grounds of application

17.  The Applicant did not put forward any ground for judicial review in his Form 86 or his supporting affirmation.  At the hearing, the above legal principles were explained to him.  He could not put forward any specific complaint about the Decision.  He attempted to explain why he was arrested and convicted for the offence of using a false instrument.  He agreed he had no worry about his safety in returning to the Philippines as Ferdinand Marcos’ son is now the president.  His concern is that with his conviction, he could not return to Hong Kong after his repatriation to the Philippines and hence he could not deal with the Documents and the funds represented by the Documents.  He asked for time to enable him to give effect to the purposes for which the funds were entrusted to him.  He said he could not do so while in custody.

18.  The Applicant was explained that this Court has no jurisdiction to review his criminal conviction.  As for his wish to distribute the funds under his control, it is not a ground for which non-refoulement protection will be given under the USM.  He was advised to seek consular assistance from the Philippines Consulate through the welfare officer of the Correctional Services Department.

Discussion

19.  The Applicant did not advance any grounds for judicial review in the Form 86 or in his supporting affirmation.  In the absence of specific grounds of application, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, or irrationality in the Decision. 

20.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly directed itself to the relevant provisions under Immigration Ordinance, including sections 37ZR, 37ZS, 37ZT and 37ZV relating to late filing of the notice of appeal and the applicable legal principles.  This Court was satisfied that the Board had carefully considered the Applicant’s explanation for the delay but found it was not a good reason for the late filing.  That was a finding of fact for the Board.

21.  The Court was also satisfied that the Board had properly considered merits of the intended appeal.  The Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  It assessed the Applicants’ claim on the basis of the case as he asserted but was not satisfied that the Applicant would face any reasonably foreseeable risk of serious or significant harm if returned to the Philippines.  It was on that basis that the Board found that he had failed to prove his entitlement to non-refoulement protection under any of the four applicable grounds.  That was also a finding of fact.

22.  For the above reasons, the Board was not satisfied, for the purposes of section 37ZT, that by reason of special circumstances it would be unjust not to allow the late filing of the notice of appeal. All these are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  The Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  The Decision was utterly without fault.  The proposed judicial review has no realistic prospect of success. 

Conclusion

23.  For the above reasons, leave to file the application for leave to apply out of time as well as the application for leave to apply for judicial review were 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