ZAMORA ROWEL ESPIRITU v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 224/2019

[2021] HKCFI 3888

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 224 of 2019

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;

Order by Deputy High Court Judge K.W. Lung:

Extension of time for the application for Judicial Review be refused &

the application for Judicial Review be dismissed.

Observations for the Applicant:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review of the Decisions dated 28 July 2015 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).  His application filed on 23 January 2019 is late for more than 4 years.  I shall deal with this issue below.

2.  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 Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”) is the respondent and the Director of Immigration (the “Director”) is the interested party.

3.  The applicant does not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall consider his application on the papers.

The applicant

4.  The applicant is a citizen of the Philippines.  He came to Hong Kong on 30 June 2012 as a visitor.  He overstayed. On 29 July 2012, he was arrested by police.  He raised non-refoulement on 17 August 2012.

5.  He claimed that if refouled, he would be harmed or killed by Mr. Arnel because of marital dispute with his wife. He also feared that Arnel’s uncle, who is the village leader would harm him as he had previously made a complaint against him at the Ilocano sur police station.  The incidents happened because of extra-marital affairs between his wife and Mr. Arnel as he caught them red-handed.  He separated with his wife. But there was a dispute over the custody of the two children.  He refused to disclose the whereabouts of the children thereupon Arnel attacked and injured him. Arnel had also sent some people to throw a Molotov into his house, though causing no damage to his house. Arnel had also threatened to kill him if he refused to hand over the children to him. Details of his story are set out in paragraph 6 of the Director’s Decision described below.

The Director’s Decisions

6.  The Director considered his application in relation to the following risks:

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

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

7.  By Notice of Decision dated 14 May 2015 and Notice of Further Decision dated 27 October 2017, the Director refused his claim for the reason that his claim was not substantiated. The Director found that the level of risk of him being harmed or killed if he returned to the Philippines was assessed to be low [13]; that there was no evidence to show that the state was involved and therefore state protection would be available to him [16] and that internal relocation was an option open to him [22]. In paragraph 6 of the Director’s Further Decision, the Director found that he failed to establish that there was personal and real risk that he was subjected to BOR 2 risk.

The Board’s Decision

8.  The applicant appealed against the Director’s Decisions. He filed his Notice of Appeal late by 4 days.  In section 5 of the Notice of Appeal, he stated:

“Sorry for my late report I forgot where put and really forgot the date of my report I very sorry.”

9.  The Board was not satisfied with his reasons for being late in his appeal.  The adjudicator considered that he had adopted a “could not care less attitude”.  The reasons were not exceptional circumstances, which he could not have anticipated.

10.  The Board then considered his case and reported in its Decision:

“8. His case is simply one of marital dispute leading to some incidents of violence and some property being vandalized. I have carefully considered the Notice of Decision and find that the Immigration Officer had carefully analyzed in detail his case. I am in agreement with the finding the Immigration Officer arrived at.

9. I have also considered his Grounds of Appeal/Petition which did not specify which part of the Immigration Officer’s finding he disagreed with. I cannot understand what he was trying to say. What he stated was incoherent. There is no substance in his Grounds of Appeal/Petition.

10.  By reason aforesaid his application for leave to appeal/petition out of time is dismissed.”

Application for leave to apply for judicial review

11.  The applicant filed Form 86 on 23 January 2019 for leave to apply for judicial review of the Board’s Decision.

12.  In his affirmations in support of his application, he said that he was not satisfied with the decisions of the Director’s or the Board’s because they did not mention the important factor of his claim.

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. The delay of more than 4 years is, of course, serious. However, I shall first 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.

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

“13.… …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 subject matter for this application is the Board’s Decision refusing to extend time for the applicant to file his Notice of Appeal.  The delay is 4 days.

17.  Under section 37 ZT (3) of the Ordinance, the Board has to consider the following factors:

i.    if there are any special circumstances; and

ii.   it will be unjust not to allow the late filing of the notice of appeal.

18.  In this case, the delay is only 4 days and the applicant is acting in person without legal assistance. His reason for the delay is forgetfulness, which was not accepted by the Board.

19.  The Board had considered the Director’s Decision, the applicant’s grounds of appeal in the notice of appeal and the adjudicator stated “I cannot understand what he was trying to say.  What he stated was incoherent.  There is no substance in his Grounds of Appeal/Petition.”

20.  It is always the duty of the applicant to present his case to the Board for consideration in a comprehensible manner. Ultimately, the Board is bound by the decision of the Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377, 2 April 2019:

“20. … … it was incumbent upon the Board, in exercise of its discretion to extend time for appeal, to take the merits of the applicant’s case into account regardless of the procedural breaches or the lack of explanation therefor.”

21.  The Board had considered the Director’s Decision and the applicant’s grounds of appeal and found that there is no merit in his intended appeal.

22.  The applicant has not complained that the Board did not understand his grounds of appeal or set out his grounds of appeal afresh. His ground in support of this application is that the Director and the Board did not mention the important factor of his claim. But he has not specified what the important factor of his claim is.

23.  His ground in support of this application does not assist his application. The Board had considered the Director’s Decision on the merits of his case and come to its conclusion that he had no merits in his intended appeal.

24.  I have also considered the Director’s Decision myself and I agree with the Director that he does not have any merits in his claim. The Board is clearly justified to hold that he has no merit in his intended appeal.

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

CONCLUSION

26.  I therefore refuse to extend time for the applicant to apply for leave to apply for his intended 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