BIAG CYRIL DIS-IW v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2204/2018

[2022] HKCFI 1147

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2204 of 2018

Application for Leave to Apply for Judicial Review

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

Following;

	consideration of documents only;     or
	consideration of documents and Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review of the decision dated 7 September 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s BOR2 Decision”), which refused to extend time for the applicant to file his notice of appeal for his appeal against the Director’s Second Decision as described below.

2.  The applicant asked for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), a hearing was fixed for him. However, he was absent without prior notice to the court. I decided to deal with his application on paper.

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

The applicant

4.  The applicant is a national of the Philippines.  He last entered Hong Kong on 28 January 2007 as a visitor and was permitted to stay until 30 January 2007.  He did not depart and had overstayed since 31 January 2007.  On 30 August 2011, he was arrested by the police.  He lodged a torture claim which was rejected on 27 February 2012 and the subsequent petition was also rejected on 11 May 2012.  On 28 April 2014, he lodged a claim of Cruel, Inhuman or Degrading Treatment or Punishment (“CIDTP”). 

5.  The applicant’s CIDTP claim was taken as a non-refoulement claim and was assessed on all applicable grounds other than torture risk[1]. His claim was made on the basis that, if refouled, he would be harmed or killed by (i) a drug syndicate; (ii) Jose Guinob (“Jose”); (iii) Martin Sagudin (“Martin”) and his creditor, the group of Erning Banigen (“Banigen Group”).

6.  As claimed, the applicant’s fear for the aforesaid parties could be summarized as follows:

(i)     The applicant joined the drug syndicate in 2002 and was a low-ranked member.  He was responsible for delivering the “Hashis”, i.e., the refined marijuana plant.  In the end of 2002, he and his friend Henry were delivering the Hashis to Manila.  However, they were almost caught by the drug enforcement agency.  Although they escaped, they lost the Hashis.  The boss of the syndicate suspected that they sold the Hashis and kept the money.  Later, the syndicate’s warehouse was raided by the drug enforcement agency and, again, the members of the syndicate blamed the applicant and Henry for the misfortune. Since then, from 2002 to 2004, the applicant had been receiving messages of threats from the members.  In 2003, he was assaulted by a member for being a suspected informer of the raid.  He was not injured in the encounters.  In 2004, the applicant learnt that Henry was killed and believed that he would be the next one.  The members of the syndicate also harassed his wife for his whereabouts;

(ii)     In early 2003, Jose joined the applicant’s garment business.  After the applicant provided the garment to him, he never gave the money back to the applicant.  The applicant even connected Jose and Martin so that Jose could borrow money to invest in the garment business.  However, Jose later denied that the garments provided by the applicant were of good quality and refused to pay.  The applicant claimed to be hated by both Jose and Martin and believed that they would harm him if the dispute was not solved;

(iii)     Since the applicant had problems with the syndicate and Jose, he was unable to repay the loan borrowed from the Banigen Group.  Thus, they also posed death threats to the applicant.

(iv)     In light of the aforesaid fears, the applicant stayed in Hong Kong for protection.     

7.  Details of the applicant’s claim were set out in paragraph 8 of the Notice of Decision dated 30 April 2015 by the Director (the “Director’s First Decision”) and paragraphs 2 to 5 of the Board’s Decision as described below.

The Director’s Decisions

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

(1)   risk of violation of the right of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (“BOR 2 risk”);

(2)   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

(3)   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”).

9.  By way of the Director’s First Decision, the Director rejected his claim on BOR3 risk and Persecution risk.  The Director found that the level of risk of harm upon the applicant’s refoulment was assessed to be low because (i) he had never been inflicted with any harm from the syndicate, Jose, Martin or the Banigen Group [15]-[18]; (ii) state protection would be available to the applicant [19]-[21]; and (iii) internal relocation was a viable option for the applicant [22]. 

10.  In the Notice of Further Decision dated 5 April 2017, the Director also rejected the applicant’s claim on BOR2 risk (the “Director’s Second Decision”) for the reason that there was no evidence to show that his right to life under BOR2 would be violated upon his return. 

The Board’s Decisions

11.  The applicant first appealed the Director’s First Decision to the Board.  On 13 June 2016, the Board conducted an oral hearing for his appeal, during which he testified [6].

12.  The Board found that the applicant had not sustained any injuries from either of the parties and the country of origin information (“COI”) showed that state protection and internal relocation would be available to the applicant. Thus, the applicant’s claim under BOR3 failed [10]-[11].  For the same reasons, his claim under Persecution risk also failed [15]-[16].  The Board listed the relevant COI in paragraph 19 and invited the applicant’s comments on these information [20].  The Board found that the alleged disputes happened some 13 years ago and the parties would no longer have any interest in the applicant and, in any event, the applicant could relocate to other cities without undue hardship [21].  Independently, the Board also considered the applicant’s delay of 9 years in seeking international protection.  It concluded that the applicant’s intention to seek protection was not genuine and his stories were unreliable [22]-[25]. 

13.  Thus, on 3 January 2017, the Board rejected the applicant’s claim and dismissed his appeal against the Director’s First Decision (“the Board’s First Decision”).

14.  On 4 July 2017, the applicant appealed against the Director’s Second Decision.  He was late by more than two months [5].  In his grounds of appeal, the applicant simply repeated that his enemies were still looking for him and the Board considered that there was no further or additional information provided other than those already canvassed in the Board’s First Decision.

15.  The Board noted that the applicant failed to report his change of address to the Director.  It also considered that, in light of the findings in the Board’s First Decision, the applicant’s current appeal had no merits at all.  As a result, there was no circumstance that would justify the late filings. 

16.  Thus, by way of the Board’s BOR2 Decision, the Board refused to allow the applicant’s late filing of notice of appeal/petition against the Director’s Second Decision.

Application for leave to apply for judicial review

17.  The applicant filed Form 86 on 11 October 2018 for leave to apply for judicial review of the Board’s Decision.

18.  In his affidavit in support of his application, he said he rejected the Board’s Decision [on BOR2 risk].

DISCUSSION

19.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

20.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

21.  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.”

22.  The applicant has not raised any valid ground to challenge the Board’s BOR2 Decision, which refused time to be extended for the applicant’s late filing of the notice of appeal. The Board had taken into consideration of its First Decision which set out the facts of the applicant’s case and the explanation given by the applicant’s delay. It found that the applicant’s explanations for his delay were not acceptable and that the applicant had no merits in his intended application for leave to apply for judicial review of the Board’s BOR2 Decision.

23.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

24.  There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

25.  I therefore refuse to grant leave for the applicant to apply for judicial review.  Accordingly, I dismiss his 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