GANITANO BENNY GANOTICE v. TORTURE CLAIMS APPEAL BOARD

HCAL 1364/2018

[2020] HKCFI 264

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1364 of 2018

     Application for Leave to Apply for Judicial Review

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

Following:

1.  extension of time for the application for leave to apply for Judicial Review ofthe decision of Torture Claims Appeal Board dated 20 April 2017 refused; and

2.  leave to apply for Judicial Review dismissed.

It is further directed that:

3.  if the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

4.  when filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

5.  the court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

6.  if the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

7.  liberty to apply.

Observations for the Applicant:

1.  The Applicant is a 42-year-old national of the Philippines who arrived in Hong Kong on 8 October 2012 with permission to work as a foreign domestic helper until the expiration of his employment contract on 8 October 2014 but was arrested on 14 May 2013 for undertaking unauthorized employment.  After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to the Philippines he would be harmed or killed by a defeated candidate over certain local election dispute.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Balingcanaway, Rosales, the Philippines.  After leaving school he worked on his family’s farmland and lived with his family in his home district.

3.  In 2010 the Applicant together with his cousin and brother-in-law assisted in the election campaign of their local mayor, RY, for his re-election against other candidates, forwhich they were given money by RY to pay the villagers to vote for him, but when RY lost his election, he put the blame on the Applicant and his family members for his defeat as he suspected that they had pocketed his money instead of paying the villagers for their votes.

4.  One day in November 2011 while the Applicant was walking with his cousin in the street, he saw some unknown men shot and killed his brother-in-law, and when those men saw him and his cousin and started to come after them, but they managed to flee from the scene unharmed.

5.  While he suspected that those men were sent by RY to kill his brother-in-law for pocketing his money, and were also going after him and his cousin, the Applicant did not report the attack to the police or seek their assistance, but instead he fled to Tuguegarao to take shelter at another cousin’s place, and then in February 2012 he moved to Manila, but when he heard that some unknown men had come to his family in Balingcanaway looking for him, he decided that it was not safe to remain in the Philippines, and was advised by his brother to leave the country by going to work as a foreign domestic worker in Hong Kong,and so on 8 October 2012 he departed for Hong Kong to start his employment here, but when he was later arrested for undertaking some other employment without permission, heraised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 28 January 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.  By a Notice of Decision dated 16 March 2015 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under PartVIIC of the Immigration Ordinance, Cap115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance (“HKBOR”), Cap 383 (“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 all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from RY or his men upon his return to the Philippines as low due to the absence or low intensity and frequency of past ill-treatment from them, that there was no reliable evidence that RY was going after him for his election defeat, that in any event 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 work experience to move to other part of the Philippines away from his home district in large cities such as Manila where it would be difficult if not impossible for RY to locate him.

8.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 22 July 2016 before the Board but elected not to give any further evidence for his appeal.  On 20 April 2017 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board found no reliable or objective evidence from the Applicantother than his own speculation that RY was trying to kill him, that he came to Hong Kong to work and not out of fear of RY, that the credibility of his claim was further undermined by his failure to raise his non-refoulement claim upon his arrival in Hong Kong until much later when he was arrested by the police, and that with reasonable internal relocation available within the Philippines for the Applicant to move safely to other areas away from his home district where it would be impossible for RY or his men to locate him that his claim for non-refoulement protection failed on all applicable grounds.

10.  By a Notice of Further Decision dated 1 June 2017 the Director again rejected the Applicant’s claim in the absence of any response from him to an earlier invitation to submitadditional 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”).

11.  More than one year later, on 12 July 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

 (1)  that the Board erred in failing to maintain high standard of fairness by not delivering its decision to the Applicant within reasonable period;

 (2)  that the Board failed to apply the minimum standards of procedural fairness required in its decision-making process; and

 (3)  that it was unfair for the Board to assess the Applicant’s non-refoulement claim as untrue.

12.  As noted above, the Applicant was by then way out of time with his Form 86, 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.

13.  As the last day of the three-month period for the Applicant to file his Form 86 for judicial review of the Board’s decision fell on 20 July 2017, hence he was late by more than 10 months with his intended application even after discounting the month of August 2017 for the Court’s summer vacation, 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: Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393.

14.  In the Applicant’s case, a delay of more than 10 months must be regarded as very substantial or excessive, for which he did not provide any explanation, and while it is noted that he was then being detained at the Castle Peak Bay Immigration Centre, in the absence of any further particulars as to when he was first detained there, and the fact that he was still able to file his Form 86 and supporting affirmation while being detained, that in my view cannot be a valid reason for his such serious delay.  As such and in the circumstances I do not accept that he has provided any good reason for his delay.

15.  As for the merits, if any, of his intended application, his proposed grounds as stated above all appear to me just all broad and vague assertions containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case, or how the Board or the adjudicator had erred in the decision, or in what way did the Board fail to apply high standards of fairness in its determination of his claim,or how was any procedural unfairness committed in his process before the Board.  None ofthese assertions were elaborated or presented with any particulars or specifics by the Applicant,and as such I do not find any of them reasonably arguable for his intended challenge.

16.  As has been repeatedly emphasized by the Court of Appeal, 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 decision that the risk of harm in the Applicant’s claim 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 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 his leave application is dismissed.

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