Doctor Manuel Dela Cruz v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL2493/2018

[2019] HKCFI 1559

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2493 of 2018

BETWEEN

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 oral submission by the Applicant in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant (Order by Deputy High Court Judge K.W. Lung):

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review against the decision of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) with the Director of Immigration (“the Director”) as interested party.

The applicant

2.The applicant is a national of the Philippines. He arrived in Hong Kong on 27 June 2016 as a visitor and was permitted to stay until 11 July 2016. He overstayed. He surrendered to the Immigration Department on 14 July 2016 and subsequently lodged a non-refoulement claim.

3.In his statements given to the Director and the Board, he said that if refouled, he would be harmed or killed by a drug trafficker named Jonjon Andrada, whom he met during a campaign for the election of the present President Duterte, who is against drug dealing in the Philippines. Jonjon had threatened him that if Duterte was elected President, he would kill him. Since Duterte had been elected President, he was afraid that Jonjon would kill him. He therefore came to Hong Kong.

The Director’s Decision

4.The Director considered his application in relation to the following risks:

a.  risk of torture under Part VIIC 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”).

5.By Notice of Decision dated 13 February 2018 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was unsubstantiated.

The Board

6.The applicant appealed to the Board and he attended a hearing before the Adjudicator on 22 June 2018.

7.By Decision dated 29 October 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decision.

8.The Board considered the applicant’s case and, having considered the evidence, it accepted the facts in support of his claim. However, it refused his appeal on the reasons below.

(1)  State protection was available to him. [46]

(2)  There was insufficient evidence to show that the state was involved through its own officials’ conduct or through their instigation, nor through the consent or acquiescence of the state. [48]

(3)  There was no evidence that the harm he feared falls within the definition of section 37U (1) of the Ordinance.

(4)  On available Country of Origin Information (“COI”), there was no evidence that the Philippines had a pattern of gross, flagrant or mass violation of human rights. [50].

(5)  For the same reasons, there was no evidence in support of BOR 2 risk, BOR 3 risk or Persecution risk under RC.

9.In his Form 86 dated 7 November 2018, under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave for judicial review of the Board’s Decision.

10.In his affirmation in support of his application dated 7 November 2018, and the submissions attached to Form. 86, the applicant relied upon the grounds as follows:

(1)  the Adjudicator had unlawfully fettered his discretion;

(2)  the Adjudicator acted in a procedurally unfair manner;

(3)  the Board’s Decision was unreasonable and irrational in the public law sense or is a result of procedural errors or unfairness;

(4)  the Adjudicator failed to meet the greater case and duty owed to a self-represented claimant; and

(5)  the hearing bundle was given to him shortly before the appeal hearing and he did not have sufficient time to prepare his case.

DISCUSSION

The Board’s Decision

11.The applicant appeared before me. He confirmed that he had had a fair interview with the Immigration officer and a fair hearing before the Adjudicator. He also confirmed that he understood the Director’s Decision as his lawyer had explained to him. His friend had assisted him with the hearing bundle and the Board’s Decision.

12.I explained the Board’s findings above to him and asked if he had any comments. He said that he had no comments on them.

13.The Court of Appeal in Re: Moshsin Ali [2018] HKCA 549 held that the findings of fact by the Adjudicator was final [42].

14.This is a clear case that the applicant brought the fear upon himself without any facts or evidence in support of it. The Adjudicator had applied the statutory provision and the Convention to his case before he came to the above findings. There is nothing amiss in his approach in the dealing of the applicant’s appeal.

15.Grounds (1) to (4) are his opinions without any evidence in support of them. They fail.

16.Ground (5) fails as it was inconsistent with what he said before this Court.

17.The applicant fails to show that he has a reasonable chance of success in his proposed judicial review.

CONCLUSION

18.Since the applicant’s intended application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for the judicial review. Accordingly, I dismiss his application.

Dated the 17^th day of June 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