Interino Elizalde Buena and Others v. Torture Claims Appeal Board and Another

HCAL 1053/2017

[2018] HKCFI 1396

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1053 of 2017

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The 1^st and 2^nd applicants are husband and wife (“A1” and “A2” respectively) and the 3^rd applicant (“A3”) is their teenaged daughter all of whom are nationals of the Philippines who came to Hong Kong on separate occasions in 2016 as visitors but overstayed and subsequently lodged their non-refoulement claim with the Immigration Department on the basis that if they returned to the Philippines they would be harmed or killed by A1’s creditor for failing to repay his debts.  All the applicants have since been released pending on recognizance pending determination of their claim.

2.A1 and A2 are aged 38 and 37 respectively while A3 is 16.  In 2003 A1 bought a 18-seater van and joined UV Express to provide transportation service to the public to and from Pasay Rotonda–Paliparan Dasmarinas Cavite in the Philippines.

3.In 2010 A1 and a wealthy and influential man AS entered into a business agreement for A1 to introduce his fellow van drivers from UV Express to borrow money from AS and that A1 was to collect the monthly loan repayments from the drivers for AS for which he was to earn a commission of half of the monthly interest payable by the drivers.

4.This business arrangement went well until May 2013 when UV Express failed to have its license renewed by the government and had to be closed down.  As a result many of the drivers under UV Express became unemployed and A1 was therefore unable to collect payments from those who had borrowed money from AS, but AS insisted to hold A1 responsible for the repayments and that he was only prepared to give him three monthsto do so, and when A1 still failed to come up with any payments, one day AS came to hishome with several men and threatened to shoot him in front of his family, and it was only when A1 offered to sell his house and van to come up with the money that AS agreed to give him one month to do so but threatened to kill him and his family if thereafter he still failed to repay the loans.

5.However, when A1 realized that the proceeds of his house and van would still come up way short for the entire outstanding amount of the loans, he decided to escape from AS by moving with his family to Barangay, but when he received threatening phonecalls from AS looking for him, A1 and his wife therefore placed their daughter in the care of his mother-in-law and then took a flight out of the Philippines on 12 November 2013 for Hong Kong, and for the next two years A1 and A2 would just travel back and forth between various places in Thailand, Malaysia, Macau and Hong Kong until 2016 when they overstayed in Hong Kong and arranged for A3 to join them later when they then separately lodged their non-refoulement claim with legal representation with legal representation from the Duty Lawyer Service.

6.By a Notice of Decision dated 24 February 2017 the Director of Immigration (“the Director”) rejected the applicants’ claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of their absolute and non-derogable rights under the Hong Kong Bill of Rights (“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”).

7.In his decision the Director found the low intensity and frequency of past threats from AS indicative of low level of risk of harm from him upon the applicants’ return to the Philippines, that their dispute was a localized and personal monetary dispute without any evidence of any involvement of the state or the police that state protection would be available to the applicants if resorted to, and that 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 the applicants can safely move to areas away from their home district such as Manila or Boracay that it would be beyond the capabilities or resources of AS to locate them.

8.On 6 March 2017 the applicants filed their appeals to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, for which they attended an oral hearing on 13 October 2017 before the Board during which both A1 and A2 gave evidence and answered questions put to them by the adjudicator.  On 16 November 2017 their appeals were dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board found no physical harm had been caused to any of the applicants by AS and that the ill-treatment meted out to the applicants had not attained the level of severity to qualify for the torture claim, that in the absence of any evidence that public authorities had been involved in the threats from AS that state protection would be available to the applicants, and that internal relocation to other areas in the Philippines would also be a viable option for them. 

10.On 12 December 2017 A1 filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, whilst A2 and A3 were subsequently granted leave to be included as applicants in A1’s Form 86 which was amended accordingly, and in A1’s supporting affirmation of the same date he put forward the following grounds for their intended challenge:

(1)  procedural impropriety for failing to consider properly the effectiveness of state reforms in the Philippines; 

(2)  procedural impropriety for failing to conduct sufficient independent inquiry into relevant COI and for cherry-picking COI materials in their consideration of the applicants’ claims;

(3)  error/misdirection in law on the part of the Board for failing to treat their appeals as a rehearing; and

(4)  failure on the part of both the Director and the Board to properly consider the applicants’ fear of harm from AS in their claims.

11.These are all just bare and vague assertions of the applicants without any particularsor specifics or elaborations as to how they applied to their case or how the Director or the Board had erred in their decisions, or which COI that they had relied on were irrelevant or cherry-picked or how the Director or the adjudicator had failed to properly consider them or to apply proper weight in their considerations, or how they failed to properly consider the applicants’ fear of harm from AS, or the effectiveness of state protection in the Philippines which the Director plainly did in his detailed and careful analysis in paragraph 17 of his decision, and which the adjudicator also clearly did in paragraphs 114 – 126 of the Board’s decision given that it was the same complaint raised by the applicants in their appeal to the Board.  I am simply unable to find any basis or merits in these complaints of the applicants.

12.It is also plainly wrong for the applicants to complain in ground (3) that the Board erred in law when it failed to treat their appeals as a rehearing, which was in fact exactly what the adjudicator did when he stated the issues before him in paragraph 88 that whether there were substantial grounds for believing that the applicants were at torture or BOR 2 or BOR 3 or persecution risks, and then proceeded to state in paragraph 89 that in assessing the applicants’ claims all the evidence and materials adduced including those at the hearing were to be considered and with high standard of fairness.  Clearly the adjudicator had dealt with the applicants’ appeals as a rehearing of all the facts and evidence of their claims available before the Board, and there is simply no basis for the applicants to make this complaint.      

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 applicants’ claim.

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

Dated the 29^th day of June 2018.

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