HERMOZA EMERITO FRANCO v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2201/2018

[2022] HKCFI 548

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2201 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;

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 14 March 2018 of the Board (“the Board’s Decision”).  His application filed on 11 October 2018 is late for about seven months.  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 (“RHC”), Form 86 is amended to the effect that the proposed respondent is the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”) and the interested party is the Director of Immigration (the “Director”).

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

The applicant 

4.     The applicant is a national of the Philippines.  He entered Hong Kong as a visitor on 17 May 2008 and was permitted to stay until 14 June 2008.  He did not depart when his limit of stay expired and had overstayed since 15 June 2008.  On 12 November 2008, he surrendered to the Immigration Department.  On 27 August 2009, he lodged a claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which was later taken as a non-refoulement claim upon the commencement of the unified screening mechanism.  The applicant’s claim was made on the basis that, if refouled, he would be harmed or killed by the New People’s Army (“NPA”) because of his intention to quit KADENA, a group formed under NPA.  

5.     According to the applicant, he joined the basketball team of KADENA in around 1990.  However, in around 1992, he was requested by the leader to assassinate some corrupted politician.  Unable to accept the orders, the applicant left the group.  Thereafter, in 1993, 1997 and 2008 respectively, he encountered three accidents with the KADENA members.  He suffered injuries from the car accident happened in 1997.  Out of fear, he eventually fled to Hong Kong for protection.  Details of his claim are set out in paragraph 6 of the Notice of Decision dated 24 November 2014 by the Director and paragraphs 12 to 22 of the Board’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 the Director’s First Decision, the Director refused his claim on the grounds of Persecution risk, Torture risk and BOR3 risk for the reason that his claim was not substantiated.  The Director found that there was no substantial evidence for believing that he would be subjected to the risks he alleged upon refoulement [11]-[13]; that state protection would be available to him [14] and that internal relocation was an option open to him [15].  In the Notice of Further Decision dated 12 May 2017 (“the Director’s Second Decision”), the Director also rejected the applicant’s claim on BOR2 risk.

8.     For simplicity, the Director’s First Decision and the Director’s Second Decision will be referred to collectively as “the Director’s Decisions”.  

The Board’s Decision

9.     The applicant appealed the Director’s Decisions to the Board.  An oral hearing was held on 3 November 2015 to deal with the applicant’s appeal. Having considered the applicant’s evidence, the Board dismissed his appeal. The Board found that the applicant’s account in relation to the assassination of the political figures vague and superficial [30]-[33]; that the applicant’s claim of being the target because the KADENA saw him as a traitor did not sit well with common sense [34]-[35]; that the applicant’s allegation that the three accidents were all caused by the KADENA members were pure speculations without evidential support [40]; and that the country of origin information suggested that state protection and internal relocation were available to him [41].  For these reasons, the Board rejected the applicant’s claim on all applicable grounds. 

Application for leave to apply for judicial review

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

11.     In his affirmations in support of his application, he said “…I don’t want to go back to my country Philippines because I have threat incident happen on 1992, then it happen again in year 1997, then after that some incident happen again in year 2008. …”

DISCUSSION

12.     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 is significant and serious. However, I shall first consider the merits of the applicant’s case.

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

14.     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.”

15.     The Board did not accept the facts of the applicant’s case. In other words, he has no factual basis to support his claim.

16.     There is no valid ground to challenge the Board’s Decision.

17.     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.

18.     There is no evidence to show that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

19.     I therefore refuse to extend time for the applicant 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