Garillo Richard Ortal v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 589/2018 on BabelCite. This High Court CFI judgment was delivered on 30 April 2019.
1. The Applicant is a national of the Philippines. He is now aged 39 (DOB: 8 July 1979).
Cited by 1 case · Cites 5 cases
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HCAL589/2018 [2019] HKCFI 977 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 589 of 2018 BETWEEN
Application for Leave to Apply for Judicial Review 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: 8 July 1979). 2.The Applicant claimed he would be harmed or killed by a drug dealer called Noel because he had reported him to the police in his country. The Applicant also feared the Filipino police. He believed they were connected with Noel. Noel’s brother was a high-rank police officer. 3.The Applicant worked as domestic helper in Hong Kong between January 2001 and January 2002. He returned to the Philippines in late January 2002. He then learnt his cousin Julbert had been taking drugs. The Applicant asked Julbert to quit his vice habit. He went with Julbert to report the drug dealer Noel to the police in February 2002. 4.A week later, the Applicant and Julbert were taken into custody by the police. The two were assaulted for their complaint against Noel. The police even threatened to kill them. 5.After release, the Applicant stayed away from home. He came to Hong Kong on 30 June 2002 to visit his partner, who had been staying here. He returned to the Philippines on 30 July 2002. He stilled stayed away from home with Julbert. Some armed police officers went to look for him. The Applicant feared Noel and his aides would find him for revenge. He went to Hong Kong again on 15 December 2002 as visitor. 6.The Applicant said he learnt Julbert was killed on 23 December 2002. He suspected Julbert’s death was related to the police. The Applicant feared he would be killed too. He did not return to his country but overstayed here from 29 December 2002. 7.The Applicant was arrested by the Immigration Department six odd years later on 18 January 2009. He raised a torture claim[1] on 19 January 2009. However, he withdrew that claim on 16 August 2010, saying his problem had been solved. 8.On 18 December 2010, the Applicant requested for his torture claim to be reopened. He told the Immigration Department that Noel had just been released from jail. 9.On 15 May 2012, the Director of Immigration (“the Director”) rejected the Applicant's torture claim. The Applicant did not appeal to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”). 10.Almost four years later, the Applicant raised a non-refoulement claim in April 2016. He said his father was murdered by Noel in June 2015 because his father had tried to report Noel to the police for his drug activities. 11.The Applicant later claimed his brother Rodel was also murdered by the police on 8 February 2017. 12.The Applicant was now in Hong Kong with his partner and their son. He claimed the Filipino police would not protect him. Nor was internal relocation viable. 13.In the ensuing two-tier screening process here, the Director and the Board respectively refused the Applicant’s claim with respect to the remaining three applicable grounds: (i) risk of persecution,[2] (ii) risk of torture or cruel, inhuman or degrading treatment or punishment (BOR3 risk)[3] and (iii) risk of violation of the right to life (BOR2 risk)[4]. 14.On 10 April 2018, the Applicant applied for leave for judicial review. Timeline 15.Things happened in this order: –
Respondent/Interested party 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 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] 18.In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Board as respondent and the Director as interested party. Thus the Board is the putative respondent; the Director is the putative interested party. The Director's decision 19.The Director rejected the Applicant's torture claim on 15 May 2012. [There was no appeal to the Board.] 20.In his decision dated 9 August 2016, the Director did not accept the Applicant faced any persecution 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 two applicable grounds. 21.In his further decision dated 15 August 2017, the Director refused the Applicant's claim with respect to the last applicable ground: BOR2 risk. The Board's decision 22.The Applicant appealed to the Board. The Adjudicator interviewed him on 27 November 2017. 23.The Adjudicator found the Applicant’s evidence unconvincing. He noted the Applicant had delayed his claim for several years. [The Applicant had overstayed in Hong Kong from 29 December 2002 but he only first raised his torture claim in January 2009 after he had been arrested by the Immigration Department. He lodged his non-refoulement claim in April 2016.] The Adjudicator did not accept the Applicant's explanation that he did not know he could make his claim earlier. The Adjudicator also found the documents (the Applicant’s medical certificate and the death certificates relating to his father, brother and cousin) questionable. The Adjudicator found the Applicant’s claim incredible. He did not accept the Applicant faced any persecution risk, BOR2 risk or BOR3 risk. On 15 March 2018, the Adjudicator refused the Applicant's appeal with respect to those three applicable grounds. Grounds of judicial review 24.The Applicant complained the Adjudicator unlawfully fettered his discretion; acted in a procedurally unfair manner; rendered unreasonable or irrational decisions; failed to meet the greater care and duty owed to a self-represented claimant. 25.The Applicant complained he was given the appeal bundle only a few days before the Board hearing. As such, he did not have sufficient time to prepare for the appeal due to language problem and lack of legal representation. He said he was confused. The Applicant accused the Board did not make appropriate arrangement for him in relation to the hearing bundle. 26.The Applicant also complained the Adjudicator relied on outdated cases, information not officially recognized or simply hearsay. Court hearing 27.The hearing took place on 10 September 2018. The Applicant was in person. A Tagalog interpreter provided service in court. 28.The Applicant said a lawyer helped him to prepare Form 86 and the affirmation. That lawyer was a friend of his friend. All the grounds of judicial review were in the documents. 29.The Applicant confirmed he had submitted all to the Director and the Adjudicator for their consideration of his non-refoulement claim. He complained they did not take into consideration of what he said. 30.The Applicant complained the Adjudicator made a mistake of the month of his being assaulted by the police in 2002. The Adjudicator took it to be ‘March’ when it was in fact ‘February’. Discussion 31.Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities. 32.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’.[6] Nevertheless, it is said in Re Islam Rafiqul: –
33.The Applicant said he was not legally represented at some stage. He had been represented by the Duty Lawyer Service up to the Director’s decision dated 9 August 2016. 34.The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim did not have an absolute right to free legal representation at all stages of the proceedings.[8] The Applicant failed to show how his case would be undermined or prejudiced by the lack of further legal representation only in the later stages of the screening process. 35.In court, the Applicant said he had a lawyer to prepare Form 86 and the affirmation for him. Apparently, the Applicant could find someone to assist him with interpretation/translation and dealing with English documents at all material times. Furthermore, he was assisted by qualified interpreters while being represented by the Duty Lawyer Service and also in the screening process before the Director and the Adjudicator. The Applicant had much exaggerated his language problem. 36.The Applicant complained he received the appeal bundle on 21 November 2017, only a few days before the appeal hearing scheduled for 27 November 2017. 37.According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’[9] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[10], the Director shall send copies of the hearing bundle to the Board and to the Applicant no later than 5 working days prior to the date of the hearing. 38.The Applicant received the appeal bundle 6 calendar days (or 5 working days) prior to the appeal hearing. The rules had not been breached. 39.The appeal bundle would consist mostly of documents that had been seen or submitted by the Applicant during the first-tier screening of his claim. The Applicant's case was not difficult and there was no evidence to show the appeal bundle was difficult or voluminous. 40.A few days certainly were not a long period but could still be sufficient for reasonable and diligent preparation on the part of the Applicant. The Applicant failed to show he really needed more time to prepare for the appeal. There is no evidence he had so complained to the Adjudicator or asked for adjournment during the appeal hearing. 41.The Applicant said he answered all the questions in the Board hearing honestly.[11] That means he knew what was asked and how to answer. He was not confused. 42.There was no evidence the Adjudicator relied on outdated cases, information not officially recognized or simply hearsay. 43.The Director said the Applicant left Hong Kong on 28 January 2002. The Adjudicator mistook it to be 28 February 2002. Apparently, that caused the Adjudicator to think the Applicant reported to the Filipino police about Noel in ‘March’ 2002, when it should be ‘February’ 2002.[12] However, that was a minor mistake. It bore no significance to the Adjudicator’s decision. 44.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. He considered the Applicant’s claim carefully and applied the law correctly. He had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim. Conclusion 45.The Applicant's complaints are not reasonably arguable. He has no realistic prospect of success in the sought judicial review. I therefore refuse to grant him leave for judicial review. Dated the 30th day of April 2019
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] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45. [7] CACV 219/2018 [2018] HKCA 570, para 14(1). [8] CACV 284/2017 Re Paswan Shibu Lal, para 21. [9] The ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’ was issued by the Chairperson of the Bboard pursuant to section 16 of Schedule 1A to the Immigration Ordinance, Cap. 115 of the Laws of Hong Kong. [10] The ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’ was issued by the Chairperson of the Board, who had been in her capacity delegated by the Chief Executive with the authority under Article 48(13) of the Basic Law of the Hong Kong Special Administrative Region to determine the practice and procedure of the Administrative Non-refoulement Claims Petition Scheme. [11] The Applicant's affirmation, Point 8 on Page 4. [12] The Adjudicator’s report, paras 25-26. |
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