Penol Agustino Pasamanero v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another
Read the full judgment text of HCAL 500/2018 on BabelCite. This High Court CFI judgment.
1. The Applicant is a national of the Philippines. He is now aged 39 (DOB: 28 August 1979).
Cited by 3 cases · Cites 4 cases
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HCAL500/2018 [2018] HKCFI 2575 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 500 of 2018 BETWEEN
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 Josiah Lam:
Observations for the Applicant Background 1.The Applicant is a national of the Philippines. He is now aged 39 (DOB: 28 August 1979). 2.The Applicant claimed he would be harmed or killed by his former business partner Angelo De Jesus (“Angelo”). 3.The Applicant lived in Santo Nino of South Cotabato in the Philippines. He partnered Angelo to run a trading business. Angelo was a businessman and the nephew of Peter Miguel (“PM”), who was the powerful mayor of Koronaldal. Angelo had the backing of PM. 4.The trading business went well. However, the Applicant received less profit from Angelo in March 2011. He questioned Angelo but Angelo did not allow him to check the business record. 5.In April 2011, the Applicant and Angelo had an argument. The Applicant asked Angelo to pay back the capital to him. A few days later, the Applicant received a death threat letter from Angelo. 6.In May 2011, someone fired gunshots at the Applicant’s house. The Applicant believed Angelo was behind the shooting. However, he did not make any report to the police. He feared the matter would get worse if he complained to the police. 7.The Applicant noticed there were strangers appearing outside his home at times. He believed those men were sent by Angelo. 8.Being in fear, the Applicant moved to live in another place called Davao in June 2011. He got a death threat text message from Angelo. He also found he was followed by a man. Again, the Applicant believed the man was sent by Angelo. 9.The Applicant changed his residence in Davao a few times. In November 2011, he moved to Manila. From there, he came to Hong Kong on 4 December 2011 as visitor. However, he did not seek non-refoulement protection immediately. He went to Macau on 15 December 2011 and came back two days later. The Applicant overstayed here after his visa expired on 2 January 2012. He surrendered to the Immigration Department a month later on 7 February 2012 and raised a torture claim[1]. The Director of Immigration (“the Director”) refused his torture claim in July 2012. The Applicant did not appeal against that decision. He later lodged a non-refoulement claim. 10.The Applicant said the Philippines police would favour Angelo because his uncle was a mayor. The Applicant had no faith in the police. He said they could do nothing in his case and many people in his country were killed beyond justice. He said the Philippines authorities would only help people in power. 11.The Applicant said internal relocation was not viable because of the power of PM. Angelo was PM’s right-hand man. The Applicant said he would not be able to live in peace anywhere in the Philippines. 12.After he had come to Hong Kong, the Applicant maintained contact with his family in the Philippines until December 2016. He was told by his brother that Angelo kept looking for him once a week and the last harassment was in November 2016. However, Angelo had not harmed the Applicant's brother. 13.In the ensuing two‑tier screening process here, the Director and the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”) respectively refused the Applicant’s non-refoulement claim with respect to the remaining three applicable grounds: risk of persecution,[2] risk of torture or cruel, inhuman or degrading treatment or punishment (BOR3 risk)[3] and risk of violation of the right to life (BOR2 risk)[4]. 14.On 28 March 2018, the Applicant applied for leave for judicial review. Timeline 15.Things happened in this order: –
Respondents 16.The Unified Screening Mechanism is a two-tier process. The Director screens an applicant’s non-refoulement claim first; the applicant may appeal to the Board which deals with his/her case on a rehearing basis. 17.In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Board and the Director as respondents. The Board is the first putative respondent; the Director is the second putative respondent. 18.In Re Moshsin Ali, the Court of Appeal states that “the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”[5] The Applicant cannot seek leave for judicial review against the Director's decision. Therefore, I shall deal with his application in relation to the Board's decision only. The Director's decision 19.The Director refused the Applicant's torture claim in July 2012. The Applicant did not appeal. He raised a non-refoulement claim in September 2013. 20.In the Director's decision dated 6 July 2017, the Director did not accept the Applicant faced any persecution risk, BOR2 risk or BOR3 risk. He also considered reasonable state protection and internal relocation were available to the Applicant in any event. The Director refused the Applicant's non-refoulement claim with respect to those three applicable grounds. The Board's decision 21.The Applicant appealed against the Director's 2017 decision. The Adjudicator interviewed the Applicant on 21 February 2018. 22.Although the Adjudicator considered the Applicant to be over-suspicious of what had happened to him in the Philippines, he was still prepared to accept the Applicant's account of events. The Adjudicator accepted there was a money dispute between the Applicant and Angelo. Angelo threatened the Applicant but he did not really mean to take the Applicant's life. The Adjudicator, however, considered if the Applicant returned to his home town the conflict might escalate. The Applicant would then face real CIDTP risk (BOR3 risk) from Angelo. [6] Yet, the Applicant could reasonably relocate himself to Manila for safety. The Applicant agreed with the Adjudicator that Angelo would not be aware if he returned to the Philippines to live in Manila. He also agreed he would not suffer any hardship of living in Manila.[7] 23.The Adjudicator found the Applicant would only face CIDTP risk (BOR3 risk) from Angelo if the Applicant returned to his home town. However, that risk could be compromised by internal relocation if the Applicant lived away in Manila. The Adjudicator, therefore, refused the Applicant's appeal on 9 March 2018. Grounds of judicial review 24.In his affirmation, the Applicant complained the Director and the Adjudicator failed to conduct sufficient enquiry/analysis of relevant country-of-origin information ("COI"); failed to consider the concept of extended state acquiescence; cherry-picked information; failed to consider his claim in a holistic manner; failed to consider the psychological impact of the threats he faced; failed to conduct sufficient analysis on internal relocation; rendered wrong decisions; failed to give sufficient reasons for their decisions. 25.The Applicant complained the Adjudicator failed to deal with his appeal on a rehearing basis and failed to make independent assessment of his case. Court hearing 26.The hearing took place on 5 July 2018. The Applicant was in person. A Tagalog interpreter provided service in court. 27.The Applicant said a friend helped him to prepare Form 86 and the affirmation. The Applicant had nothing to add to those grounds. He just emphasised he faced risk in his country. 28.The Applicant confirmed he had submitted all of his case to the Director and the Adjudicator for their consideration of his non-refoulement claim. Discussion 29.Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities. 30.A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[8] Nevertheless, it is said in Re Islam Rafiqul: –
31.In his affirmation, the Applicant complained against the Director as well as the Adjudicator. As said in paragraph 18 above, I shall deal with the Applicant’s application for leave for judicial review against the Board's decision only since the Director's 2017 decision had been taken on appeal to the Board. 32.The Applicant complained the Adjudicator failed to deal with his appeal on a rehearing basis and failed to make independent assessment of his case. That was not true. The Adjudicator’s report clearly showed the Adjudicator dealt with the Applicant's appeal against the Director’s 2017 decision on a re-hearing basis. The Adjudicator engaged in joint endeavour with the Applicant in the screening process. The Applicant was given reasonable and sufficient opportunities to state and elaborate his case. The Adjudicator made his assessment independently of the Director’s view. In fact, the Adjudicator’s decision was different from the Director’s. The Director considered the Applicant faced no risk at all. The Adjudicator, on the other hand, found the Applicant would face CIDTP risk (BOR3 risk) but that risk could be compromised by internal relocation. 33.The Applicant complained the Adjudicator cherry-picked information. The Applicant failed to be specific. There was no proof of such allegation. 34.The Applicant said the Adjudicator failed to consider his claim in a holistic manner. The Adjudicator’s report showed the Adjudicator considered the whole of the Applicant’s case thoroughly. 35.The Adjudicator did consider the psychological impact of the threats claimed by the Applicant. He accepted the Applicant had formed such fear that made him decide to leave his country. The Adjudicator considered the Applicant's claim in detail. He only accepted the Applicant would face CIDTP risk (BOR3 risk) if he went back to his home town and confronted Angelo. The Adjudicator found there was no life risk (BOR2 risk) because Angelo did not really mean to kill the Applicant. The complained situation was only a private dispute about money and not for any Convention reasons (race, religion, nationality, membership of a particular social group or political opinion) so there was also no persecution risk. [The Adjudicator need not be concerned with torture risk because it was not a subject matter on appeal from the Director’s 2017 decision. The Applicant’s torture claim was rejected by the Director in 2012 and there was no appeal.] 36.The Applicant complained the Adjudicator failed to consider the concept of extended state acquiescence. The Adjudicator said in paragraph 34 of his report:
37.It is for sure the Adjudicator had inadvertently omitted the word ‘no’ in the third line before ‘indication’. Mr ADJ (Angelo) was indisputably not a government official. Despite such inadvertent mistake, the Adjudicator’s meaning was clear in the context: he found there was no state involvement or any active/passive state acquiescence. 38.In any event, state acquiescence was not an issue in the Applicant’s case. He had never reported his predicament to the Philippines police or authorities. There was no evidence the Philippines police or authorities knew of the alleged situation and acquiesced in it. 39.The Applicant complained the Adjudicator failed to conduct sufficient inquiry or substantive analysis of relevant COI and wrongly concluded that internal relocation was viable. 40.The Adjudicator need not refer to COI in this regard because the Applicant himself agreed with the Adjudicator that Angelo would not be aware if he returned to the Philippines to live in Manila. The Applicant further agreed he would not suffer any hardship of living in Manila.[10] 41.The Adjudicator was entitled to find the Applicant would only face CIDTP risk (BOR3 risk) from Angelo if he returned to his home town. That risk was a localized one. The Applicant could relocate himself to Manila to avoid such risk. The Adjudicator’s conclusion was not Wednesbury unreasonable. 42.I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding, conclusion and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The Adjudicator was acquainted with the facts of the case. He considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim. None of the Applicant’s complaints is substantiated. Conclusion 43.The Applicant's complaints are not reasonably arguable. He has no realistic prospects of success in the sought judicial review. I therefore refuse to grant him leave for the review. Dated 11th day of December 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 [1] As defined in Part VIIC of the Immigration Ordinance, Cap 115, which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. [2] By reference to the non-refoulement principle under Articles 33 and 1A(2) of the 1951 Convention relating to the Status of Refugees. [3] Under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383. [4] Under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383. [5] CACV 54/2018, para 45. [6] The Board's decision, paras 32-35. [7] Ibid., paras 36-37. [8] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45. [9] CACV 219/2018 [2018] HKCA 570, para 14(1). [10] The Board's decision, paras 36-37. |
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