PASCUAL JIM LEO OMAGING v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 354/2025

[2025] HKCFI 2807

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 354 OF 2025

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 18 October 2024 of the Torture Claims Appeal Board (“the Board’s Decision”). His application is late. His application shall not be later than 3 months from the date of the Board’s Decision[1], which expired on 18 January 2025. His application was filed on 7 February 2025, which is late for 20 days. This issue will be dealt with below.

2.  The applicant asked for a hearing. He appeared before the Court on 16 May 2025.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.  The applicant is a national of the Philippines. On 6 February 2019, the applicant last arrived in Hong Kong and was permitted to work as a domestic helper, but when his employment contract was prematurely terminated, he did not depart and overstayed since 10 August 2023. On 16 November 2023, he was arrested by police for being a suspected over-stayer. In due course, he lodged a non-refoulement claim in Hong Kong.

5.  The applicant’s claim was based on his fear of being harmed or killed by a man named Eduardo Acosta (“EA”) and his men.

6.  According to the applicant, he and his wife were attacked and only found out later that it was EA’s men who mistook the applicant as the person who stabbed EA’s cousin. The applicant also said that EA’s men continued to harass and threaten the applicant and his mother-in-law. Details of his claim are set out at paragraph 7 of the Notice of Decision dated 24 June 2024 by the Director (the “Director’s Decision”).

The Director’s Decision

7.  The Director considered the applicant’s claim in relation to the following risks:

a. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b. risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d. risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

8.  By way of the Director’s Decision, the Director assessed the applicant’s claim and dismissed his claim. In summary, the Director found that the claimed level of risk of being harmed or killed was assessed to be low; that the low intensity of past ill-treatment is indicative of the unlikelihood for a future risk of harm, the problem being private in nature and localised, and no evidence that the problem was government-tied [14-19]; that state protection was available [20-26]; and that internal relocation alternatives were available and reasonable [27-29].

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board. On 12 September 2024, the Board conducted an oral hearing. The applicant confirmed the truth and correctness of all the evidence and no additional statements or documents were submitted to support his claim [38-42].

10.  Having considered the evidence, the Board did not draw an adverse inference in relation to his conviction of working without permission and that some of his claims were credible and accepted [55-56]. However, on the evidence in relation to EA, the Board found that the applicant did not demonstrate that there were substantial grounds for believing there was a real risk that EA had any intention to harm the applicant [60]. In any event, having considered the Country of Origin Information, the Board found that the applicant would not be denied a fair trial and would ultimately secure justice against EA [65], and rejected the claim that EA would hunt down and kill the applicant anywhere in the Philippines [66]. In conclusion, the Board held the applicant’s claim failed under all applicable grounds. It therefore dismissed his appeal and confirmed the Director’s Decision.

Application for leave to apply for judicial review of the Board’s Decision

11.  The applicant has filed Form 86 dated 7 February 2025 for leave to apply for judicial review of the Board’s Decision. He did not put forth any reason in Form 86.

12.  In the applicant’s affirmation in support of his application, the applicant exhibited the Board’s Decision and deposed his grounds. The applicant included grounds which are summarized as follows: the Director’s Decision was a wrong decision and the Director rejected his claim without proper inquiry and fully understanding his situation. This was a bare assertion without particulars or details. The applicant also did not provide any explanation on his substantial delay in filing his Form 86.

DISCUSSION

13.  As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of the applicant’s case.

14.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that the Board was wrong because it did not accept his evidence.

15.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

16.  The issue of admissibility of his evidence is within the province of the Board. For the reasons the Board has given above, the Board found that the applicant will not be subjected to any of the applicable risks if he returns to his country. The applicant has not raised any valid ground to challenge the Board’s findings. There is no reason for this Court to interfere with the Board’s Decision.

17.  In the circumstances, the applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

18.  I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.