Case Document

100%Judiciary

HCAL1818/2018

[2019] HKCFI 1798

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1818 of 2018

BETWEEN

	Pimentel Norberto Nisperos	Applicant
	and
	The Adjudicator of the Non-refoulement Claims Petition Office	1^st Putative Respondent
	The Director of Immigration	2^nd Putative Respondent

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 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 respective decisions of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”).

The applicant

2.The applicant is a national of the Philippines. He arrived in Hong Kong on 7 February 2015 as a visitor and was permitted to stay until 21 February 2015. He overstayed. On 4 March 2015, he surrendered to the Immigration Department and lodged a non‑refoulement claim.

3.His reason for his application is that if he was refouled to the Philippines, he would be killed due to a land dispute.

4.In his statements given to the Director and the Board, he claimed that his estranged wife had mortgaged his coconut plantation for a loan to a creditor named Ann Silvestre, who was the wife of a powerful government official. Ann took her men to enforce the security. He disagreed. Ann took her men to attack and assault him. Ann had also made false allegations against him to the police and even to the court. However, he was released and discharged from the fake charge. He was afraid that if refouled, he would be harmed or even killed by Ann and her people as he learned from his friends that she had done the same to another debtor.

The Director’s Decision

5.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”).

6.By Notice of Decision dated 16 March 2018 (“the Director’s Decision”), the Director rejected his application for the reason that his claim was unsubstantiated.

The Board’s Decision

7.The applicant appealed to the Board and he attended a hearing before the Adjudicator on 17 July 2018.

8.By Decision dated 27 August 2018 (“the Board’s Decision”), the Board refused his appeal and confirmed the Director’s Decision.

9.The Board considered the applicant’s case carefully. It came to a conclusion that the applicant would not be at risk of any harm if he returned to the Philippines. It found that there was not a real risk that he would face any harm should he return to the Philippines for the reasons he had claimed [103]. The Board came to this conclusion because it found that there were a number of inconsistencies in his evidence at the Immigration interview and at the hearing, especially on the factual issue in relation to whether Ann and her people had assaulted and threatened him. He did not say so in his statement given to the Director, but he said so at the hearing [81]. Such inconsistencies in the evidence and the lack of credibility of the claims had led the Adjudicator to find that he had not told the truth about Ann Silverstre threatening to harm him or kill him [97]. The Board described this as “fabricated his claims to be in fear of Ann Silvestre or people acting on her behalf in an attempt to extend his stay in Hong Kong [72].

10.Alternatively, the Board found that the applicant was able to relocate himself and live elsewhere in the Philippines away from his village [100].

Application for leave to apply for judicial review

11.In his Form 86 dated 3 September 2018, under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave for judicial review of the Director’s Decision and the Board’s Decision respectively.

12.In his submissions annexed to Form 86 in support of his application, the applicant relied upon the following grounds:

(1)   the Director and the Adjudicator had made wrong decisions because under BOR 2 risk, he must be given protection from extra-judicial killings as his case was one;

(2)   the Director failed to consider the issue of state acquiescence;

(3)   the Director had not given due weight to his arguments before coming to his conclusion;

(4)   the Director failed to give sufficient weight to the Country of Origin Information (“COI”) which supported the applicant’s case;

(5)   the Director failed to appreciate corruption and incompetency of the administration in the applicant’s country;

(6)   the Director had failed to attain high standard of fairness in his assessment.

(7)   the Adjudicator failed to give sufficient time and chance to the applicant to arrange relevant evidence in support of his claim; and

DISCUSSION

The Director’s Decision

13.In my view, the applicant is not entitled to apply for judicial review of the Director’s Decision without exceptional circumstances. In Haider Zeeshan v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and The Director of Immigration [2018] HKCFI 2647, HCAL 806/2018, 5 December 2018, I had held that the applicant, without exceptional circumstances, is not entitled to apply for judicial review of the Director’s Decision because the Board has been established by legislation to deal with appeals against the Director’s Decision and this Board has wider power than this Court to make investigation in the matter. The Board had considered his appeal and made its Decision.

14.Also, the Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018, having considered the relevant statutory provisions of the Immigration Ordinance, Cap. 115 in relation to the powers of the Director and the Board, decided:

“45. All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. For these reasons we are of the view that the judge was correct to conclude 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.”

15.Since the applicant has not set out any exceptional circumstances, his application for leave simply fails in limine.

16.For the reasons above, I dismiss the applicant’s application for leave for judicial review of the Director’s Decision.

The Board’s Decision

17.The applicant appeared before me. He confirmed that he had no complaint against either the Immigration officer or the Adjudicator. His lawyer had explained the Director’s Decision to him. His friend had explained the hearing bundle and the Board’s Decision to him. He considered he had had a fair hearing before the Board.

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

19.It is obvious that as the Board rejected all of his evidence on the facts of his case, he has no factual basis in support of his claim.

20.Grounds (1) and (3) to (7) are his opinions without any evidence in support of them. They fail.

21.Ground (2) is irrelevant as he had no factual basis in support of this ground.

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

CONCLUSION

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

Dated the 19^th day of July 2019

(Henry Ng)
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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s 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 19/7/2019 Pimentel Norberto Nisperos 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 19/7/2019 The Adjudicator of the Non-refoulement Claims Petition Office 1^st Putative Respondent’s ref. no.: USM 10910/18/3/362/F658 The Director of Immigration 2^nd Putative Respondent’s ref. no.: QA T/A 483/18 (formerly RBCZ 10987/15 PSO) T8180 Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)