PAHATE JOEL PERIDO v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 2663/2018

[2022] HKCFI 2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2663 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 the Torture Claims Appeal Board dated 20 October 2017 refused; and

2.  leave to apply for Judicial Review of both the decision of the Torture Claims Appeal Board dated 20 October 2017 and the decision of the Director of Immigration dated 26 October 2018 dismissed.

Observations for the Applicant:

1.  The Applicant is a 49-year-old national of the Philippines who last arrived in Hong Kong on 5 April 2012 with permission to remain as a visitor as extended to 17 April 2012 when he did not depart and instead overstayed, and more than 2 years later on 14 May 2014 he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to the Philippines he would be harmed or killed by a local businessman over his discovery of illegal gambling operation in the businessman’s resort compound. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Manila, the Philippines. After leaving school he went to work in South Korea as a music entertainer before returning to the Philippines in 2005 to work as a farmer and machine operator.

3.  In September 2007 he was invited to do a music performance at the resort compound of a wealthy businessman in Guagua Town in Pampanga, during which he accidentally discovered illegal gambling activities within the compound, and when the bodyguards of the businessman grabbed him and threatened him not to disclose what he had seen or else he would be killed, the Applicant put up a struggle and managed to make his escape from the place to return to his home.

4.  As he became fearful for his safety, the Applicant fled the country for South Korea where he resumed his former job, and in December 2008 he travelled to Hong Kong to visit his girlfriend whom he subsequently married in Hong Kong and where he since overstayed until 2 December 2010 when he surrendered to the Immigration Department, and was subsequently repatriated to the Philippines together with his wife.

5.  Upon returning to his home district, the Applicant and his family stayed at his parents’ place, but when he later heard that the wealthy businessman had sent his bodyguards looking for him everywhere with the intention to kill him to silence him over the businessman’s illegal gambling operation, the Applicant on 19 September 2011 departed the Philippines with his family to travel to Hong Kong again where he repeatedly extended his stay and eventually overstayed his visitor visa, and upon his subsequent surrender to the Immigration Department 2 years later on 14 May 2014, he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 17 March 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

6.  By a Notice of Decision dated 29 May 2015 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”).

7.  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 local businessman and his bodyguards 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 there was no evidence of any real intention of them to kill him when there had been amply time and opportunities for them to do so in the past, 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 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 the businessman and bodyguards to locate him.

8.  On 9 June 2015 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 5 August 2016 before the Board during which he gave oral evidence and answered questions raised of his claim by the Adjudicator for the Board. On 1 March 2017 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board found the Applicant’s evidence as to his claim of fear of harm from the businessman over his knowledge of his illegal gambling operation vague and unreliable that it doubted the credibility of his claim which was further undermined by his failure to raise it upon his first arrival in Hong Kong until 2 years later, and that in any event in the absence of any evidence of official involvement that state/police protection would be available to the Applicant if needed upon his return to the Philippines 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 anyone that his claim for non-refoulement protection failed on all applicable grounds.

10.  Meanwhile on 15 March 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 after receiving and considering further submissions from him, the Director by a Notice of Further Decision dated 27 March 2017 also rejected the Applicant’s BOR 2 Claim upon finding that the facts of his case did not engage the BOR 2 ground and that he had also failed to establish any personal or 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.

11.  On 10 April 2017 the Applicant again lodged an appeal to the Board against this further decision of the Director, for which the Board did not hold any further oral hearing and proceeded to deal with his appeal in his absence and on paper, and on 20 October 2017 it dismissed his appeal regarding his BOR 2 Claim upon finding no evidence to support such a claim and on the basis of the Board’s previous unchallenged findings regarding his claim which it had rejected under all the other applicable grounds in its first decision.

12.  Less than one year later on 15 September 2018, the Applicant made a request to the Director to make a subsequent claim as he has been informed by his parents that his enemies are still looking for him in the Philippines and has recently killed his brother, and hence he still fears of being killed if refouled to his home country.

13.  There are however constraints on a claimant who has previously made a non-refoulement claim to make a subsequent claim, as Section 37ZO of the Immigration Ordinance stipulates as follows:

“(1) Except as provided in subsection (2), a person who has previously made a torture claim must not subsequently make another torture claim.

(2) A person may make a subsequent claim if the person provides sufficient evidence in writing to satisfy an immigration officer that –

(a) there has been a significant change of circumstances since the previous claim was finally determined or withdrawn; and

(b) the change, when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success.

(3) In deciding whether or not a person may make a subsequent claim under subsection (2), an immigration officer may take into account any finding of credibility or fact made by an immigration officer or the Appeal Board in relation to a torture claim previously made by the person.

(4) If an immigration officer decides that a person may make a subsequent claim under subsection (2), the immigration officer must give the person written notice of the decision.

(5) If an immigration officer decides that a person may not make a subsequent claim under subsection (2), the immigration officer must give the person written notice of the decision, and the notice must also include the reason for the decision.”

14.  Accordingly, by a letter dated 21 September 2018 the Director required the Applicant to provide further information and evidence in writing in support of his request, which he subsequently did by a letter dated 17 October 2018 enclosing additional information.

15.  By a Notice of Decision dated 26 October 2018 the Director refused to allow the Applicant to make a subsequent claim upon finding that the basis thereof was essentially the same as that of his previous claim, and that he failed to provide sufficient evidence in writing to satisfy an immigration officer that there has been a significant change of circumstances since his previous claim was determined, that there is no reliable evidence that his brother had in fact been killed other than just hearsay and bare assertion, or that such alleged change when taken together with the material previously submitted in support of his previous claim would give his subsequent claim any realistic prospect of success given the unchallenged findings in his previous claim by both the Director and the Board of the availability of both state protection and internal relocation upon his return to the Philippines.               

16.  On 23 November 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the second decision of the Board of 20 October 2017 regarding his previous claim as well as the Director’s decision of 26 October 2018 in refusing his request to make a subsequent claim, but no ground for seeking relief was given in his Form against either decision, and in his supporting affidavit of the same date he did not put forward any proper ground for his intended challenge, nor was he able to do so at the hearing of his application.

17.  By then the Applicant was also out of time with his intended challenge of the Board’s second decision, 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.

18.  As the last day of the three-month period for him to file his Form 86 against the Board’s second decision fell on 20 January 2018, the Applicant was therefore more than 10 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.

19.  In the Applicant’s case, a delay of more than 10 months must be considered as very substantial and inordinate, for which he explained at the hearing of his application that during the material time he had changed his address but without informing the authorities of his new address, and that it was much later when he reported on his recognizance to the Immigration Department that he was informed of the decision, but by then he was already out of time with his application.

20.  The record shows that the decision was sent on the same day to his last reported address without being returned through undelivered post, and in the absence of any further details or documentary evidence to corroborate his bare assertion that he did not receive the decision in the mail due to his change of address, but of which it was in any event his duty to inform the authorities, I am not satisfied that the Applicant has provided any good or valid reason for his serious delay.

21.  As for the merits, if any, of his intended application against either decisions, as noted above the Applicant has failed to put forth any reasonably arguable grounds for his intended challenge, and as such and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or the Director or in their decisions being clearly and properly identified by the Applicant, and given the fact that even on his own case at the highest that his claim simply did not engage the BOR 2 ground of which the Board’s decision was concerned, as well as the correct findings by both the Director and the Board in their assessment of his previous claim as to the availability of state protection and internal relocation to the Applicant upon his return to his home country, there is simply no merits in his intended application against either decisions.

22.  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.

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

24.  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 all the applicable grounds or in the Director’s consideration of his request to make a subsequent claim.

25.  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 with his intended challenge of the Board’s decision for which I refuse to extend time, I accordingly dismiss his leave application as regard both decisions.

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