Case Detail

HCAL 1945/2018

[2023] HKCFI 316

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1945 OF 2018

_____________

BETWEEN

	BELZA RODOLFO UMEREZ	Applicant
	and
	TORTURE CLAIMS APPEAL BOARD	Putative Respondent
	and
	DIRECTOR OF IMMIGRATION	Putative Interested Party

_____________

Before:

Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing:	27 January 2023
Date of Decision:	3 February 2023

_____________

D E C I S I O N

_____________

1. On 22 April 2022 I refused to grant leave to the applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) in rejecting/dismissing his appeal/petition regarding his non-refoulement claim upon finding that none of his proposed grounds were reasonably arguable for his intended challenge, that there was no error of law or procedural unfairness in his process before the Director of Immigration (“Director”) or the Board or in their decisions, and that there was no reasonable prospect of success in his intended application.

2. The applicant now by a summons issued on 25 October 2022 seeks extension of time to appeal against that decision, as the 14-day period for him to file his appeal under Order 53 rule 3(4) of the Rules of the High Court, Cap 4A expired on 6 May 2022, and hence he was more than 5 months late with his intended appeal.

3. In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the prospect of success of the intended appeal; and (iv) the prejudice to the respondent if an extension of time were granted: see Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurang Min Bahadur[2018] HKCA 226; and Re Saqlain Muhammad[2018] HKCA 346.

4. In the applicant’s case, a delay of more than 5 months must be considered as very substantial and inordinate, for which he explained at the hearing of his summons that he was in prison from 2 June 2022 to 30 October 2022 and never received the decision in the mail, and it was later after his release from prison and was transferred to the Castle Peak Bay Immigration Centre (“CIC”) when he was informed by his immigration officer of the decision, but by then he was already out of time with his intended appeal.

5. The court record shows that the decision was sent on the same day of 22 April 2022 to the applicant’s last reported address but was subsequently returned marked unclaimed, but upon enquiry the Immigration Department did confirm that it was the correct address as then reported and maintained by the applicant. In the circumstances and if indeed the applicant had been in prison for the period as alleged, there is no good or valid reason why the decision so sent had been returned and marked unclaimed, and it suspiciously smacked of an attempt to avoid receiving the decision. In the circumstances and in the absence of any further evidence to corroborate his bare assertions, I am not satisfied that the applicant has provided a good or valid reason for his serious delay.

6. More importantly, the applicant also failed to put forth any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the decision or why it may reasonably be argued that the decision was unfair or unreasonable either in his summons or his affirmation, and at the hearing of his summons he could only repeat his claim as before that his life would still be in danger in his home country. As such and in the absence of any error in the decision being clearly and properly identified by the applicant, I do not see any prospect of success in his intended appeal.

7. In the premises, and for the reasons given, it would be futile to extend time for what appears to be a hopeless appeal. I accordingly refuse his application for extension of time to appeal, and dismiss his summons.

	(Bruno Chan)
	Deputy High Court Judge

The applicant appeared in person

HCAL 1945/2018

[2022] HKCFI 1157

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1945 of 2018

BETWEEN
	Belza Rodolfo Umerez	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1. The Applicant is a 60-year-old national of the Philippines who arrived in Hong Kong on 23 May 2012 as a visitor and with his stay extended on the basis of his application for a dependent visa, but when that expired on 27 April 2016 and he was required by the Immigration Department to leave Hong Kong, he raised a non-refoulement claim on the basis that if he returned to the Philippines he would be harmed or killed by a fellow villager or his people over some personal dispute in his home district. He was subsequently released on recognizance pending the determination of his claim.

2. The Applicant was born in Paracale, Camarines Norte, the Philippines. And at the age of 3 he then moved with his family to Barangay Santo Domingo, Nabua, Camarines Sur. After leaving school he worked as a farmer, got married and raised a family with 6 children.

3. In about 2010 the Applicant together with his friends beat up a fellow villager Romeo who was drunk and causing disturbances, and thereafter Romeo swore that he would ask his brother whom he claimed to be a member of the terrorist group New People’s Army (“NPA”) to kill all of them in revenge.

4. Several days later when the Applicant heard that one of his friends who was involved in the fight had been shot dead by some unknown person, he feared that it was part of Romeo’s revenge against them, and so on 23 May 2012 he fled from the Philippines for Hong Kong where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 3 October 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5. By a Notice of Decision dated 8 November 2017 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”).

6. In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found it incredible that he would as a result of his claimed fear leave his family behind and his home country for Hong Kong over his alleged dispute with a drunk villager over a minor dispute, and that even if the claim were true that the level of risk of harm from Romeo or his brother or any NPA people upon the Applicant’s return to the Philippines was assessed as low due to the absence of or low intensity and frequency of past ill-treatment from them, that it was in any event a private personal dispute between them without 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 102 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 part of the Philippines away from his home district in large cities such as Manila where it would be difficult if not impossible for his perceived enemies to locate him.

7. On 16 November 2017 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 29 May 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 24 August 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8. In its decision the Board found serious inconsistencies, discrepancies and contradictions in the Applicant’s evidence as to his claimed fear of harm from Romeo or the NPA people that it did not consider him to be a witness of truth and doubted the credibility of his claim, which had been further undermined by his failure to raise it upon his first arrival in Hong Kong until several years later that it was not satisfied that he faces any risk of serious harm from Romeo or his brother or the NPA people upon his return to the Philippines, and that in any event in the absence of any official involvement that state/police protection would be available to the Applicant if needed as well as reasonable internal relocation for him to move safely to other area away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

9. On 14 September 2018 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, and in his supporting affidavit of the same date he just stated that he rejects the decision as it disregarded his dangerous situation but without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application. 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.

10. 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; ReMudannayakalage Chaminda Pushpa Kumara[2018] HKCA 400; and NupurMst v Director of Immigration[2018] HKCA 524.

11. In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 65 – 80 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law 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 to challenge the finding of the Board.

12. Furthermore, 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 the Applicant’s claim if true 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.

13. 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.

14. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.

Dated the 22^nd day of April 2022.

(K.H. LI)
for Registrar, High Court

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

Notesfor the Applicant: If leave has been granted, the Applicant or his solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 22 April 2022 Belza Rodolfo Umerez Applicant’s ref. no.: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 22 April 2022 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 9208/17/11/219/F480 Director of Immigration Putative Interested Party’s ref. no.: RBCZ/11232/17 Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

BELZA RODOLFO UMEREZ v. TORTURE CLAIMS APPEAL BOARD [Decision on Leave Application]

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	consideration of the documents only; or
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