QUIATCHON JEFREY MEDIAVILLA v. TORTURE CLAIMS APPEAL BOARD

HCAL 867/2020

[2024] HKCFI 2186

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 867 OF 2020

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 / the Applicant being absent 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 8 January 2020 be refused; and

2.  The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 37-year-old national of the Philippines who arrived in Hong Kong on 11 June 2018 as a visitor with permission to remain as such up to 25 June 2018 when he did not depart and instead overstayed, and on 3 July 2018 he surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if he returned to the Philippines he would be harmed or killed by some murderers for having witnessed a murder committed by them and for having assisted the police in their investigation of the murder. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Valladolid, Negros Occidental, the Philippines. After leaving school he worked as a security guard to make his living.

3.  In 2017 he started working as a security guard in Bacolod City, and one night in January 2018 while on duty at the Quadra Compound he saw several men alighting a vehicle, and then 3 of them shot 2 other men and threw their bodies in a nearby drainage in the Compound before getting back on the vehicle and drove away.

4.  As he recognized 2 of the murderers for having earlier stopped them from dealing drugs inside the Compound, the Applicant subsequently assisted the police in their investigation by identifying those murderers.

5.  Shortly thereafter one night while he was not in his home, he was told by his family members that some unknown men had come looking for him, and when they could not find him in the house, those men then threatened his family members with guns to demand them to disclose his whereabouts, but when they were unable to do so, those men then threatened that they would find the Applicant and kill him for having helped the police in their investigation of the murder.

6.  Fearing for his life the Applicant therefore fled to Dumaguete City and then to Manila, and on 11 June 2018 he departed the Philippines for Hong Kong and subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 29 January 2019 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.  By a Notice of Decision dated 14 March 2019 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of 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”).

8.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that he would be in danger of being harmed or killed by those murderers upon his return to the Philippines due to the low intensity and frequency of past ill-treatment from them, that in the absence of any official involvement and being an eye-witness to a murder 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 104 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 areas of the country away from his home district in large cities such as Manila where it would be difficult if not impossible for anyone to locate him.

9.  On 25 March 2019 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 30 October 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 8 January 2020 his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision the Board gave the Applicant the benefit of his doubt and accepted his claim of fear of harm from those murderers for having witnessed their crime and assisted the police, but found in the absence of any official involvement and being a witness to a crime that state or police protection would be available to the Applicant upon his return to the Philippines as well as reasonable internal relocation alternatives for him to move safely to other parts of the country away from his home district without any risk of being located by those murderers that his claim for non-refoulement protection failed on all applicable grounds.

11.  On 11 May 2020 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or his supporting affirmation of the same date to which he just attached a copy of the decision and repeated his claim as before but without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application.

12.  By then the Applicant was also 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 to extend the period within which the application shall be made.

13.  As the last day of the three-month period for him to file his Form 86 fell on 8 April 2020, the Applicant was therefore more than 1 month 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.

14.  In the Applicant’s case, a delay of more than 1 month must be considered as substantial and inordinate, for which he did not provide any explanation or reasons in his Form or affidavit, and as the record shows that the decision was sent on the same day of 8 January 2020 to his then reported address without being returned through undelivered post, I am unable to see any good or valid reason for his such serious delay.

15.  As for the merits, if any, of his intended application, as noted above that the Applicant has also failed to put forth any proper ground for his intended challenge. As such, and in the absence of any error of law or irrationality 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 for his intended challenge or 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 fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in his claim if real 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 to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

18.  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.

19.  For all 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