Case Document

100%Judiciary

HCAL1219/2018

[2019] HKCFI 2250

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1219 of 2018

BETWEEN

	Espiritu Christopher Caber	Applicant
	and
	Torture Claims Appeal Board/ 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 Director of Immigration (“the Director”) and the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”).

The applicant

2.The applicant is a Filipino national. On 27 July 2008, he came to Hong Kong and was permitted to stay as visitor until 3 August 2008. He overstayed without permission of the Director. On 27 October 2009, he was arrested by police and was referred to the Immigration Department for investigation. On 30 October 2009 he lodged his non‑refoulement claim.

3.He claimed that if he was repatriated to the Philippines, he would be harmed or killed by Sapida because he had witnessed a murder committed by this fellow and he had reported the matter to the police.

4.In his statement to the Director and the Board, the applicant said that on the morning of 7 July 2007, he and his friends were on the street. Suddenly, they were robbed by four men, one of whom was Sapida. They pulled out a pistol and told them to kneel down and hand over their phones and wallets. One of his friend refused and told the others to remember their faces, whereupon the robbers shot him on his neck , as a result of which his friend died. Sapida approached him and warned him not to be witness or he would be killed. He was afraid of Sapida as his family was influential there. He moved to live in his brother’s home and his aunt’s home. He decided to come to Hong Kong to avoid them.

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 21 August 2014 and Notice of Further Decision dated 9 March 2017, collectively called (“the Director’s Decisions”), the Director refused his application for the reason that his non-refoulement claim was not substantiated.

The Board’s Decision

7.The applicant appealed to the Board and attended a hearing before the Adjudicator on 16 May 2017.

8.By Decision dated 10 May 2018 (“the Board’s Decision”), the Board refused his appeal and confirmed the Director’s Decisions.

9.Having considered the applicant’s evidence, the Adjudicator found that there was no risk that the applicant would be harmed or killed by Sapida if he was refouled to the Philippines. The following paragraphs show the facts found.

“36. What I find is missing from the Appellant’s claim is any evidence to support his contention that Sapida has any sort of influence which could be a threat to him other than his suggestion that his relatives are elected local officials. …

39. The Appellant has only met Sapida on one occasion after the killing. On that occasion, Sapida said something which the Appellant took to be a threat resulting in him moving away from home. Since then, now ten years ago, the Appellant has heard nothing further from Sapida. There do not appear to be any moves to continue the case against Sapida and I can find nothing (apart from the Appellant’s unsupported speculation) to suggest that there is any risk to the Appellant if he were to return to the Philippines.

42. The Appellant believes that he would not feel safe elsewhere in the Philippines but gives no sound reason for this belief. In any event, I am satisfied that if the Appellant were living away from Dasmarinas, there is no reason to suppose that Sapida, or anyone acting through him, would be able to locate the Appellant even assuming that they wanted to.”

Application for leave to apply for judicial review

10.By Form 86 dated 28 June 2018, under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave for judicial review of the decisions of the Director and the Adjudicator of the Board respectively.

11.In his submission annexed to Form 86 in support of his application dated on 28 June 2018, he set out the reasons in support of his application below:

(1)  the Director failed to maintain high standard of fairness and his conduct was Wednesbury unreasonable;

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

(3)  the Director had not considered collusion between the police and the high ups of political circles and the misconduct of the police officials;

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

(5)  the Director elected to adopt COI which suited his pre-conceived conclusion, which is unfair to the applicant;

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

(7)  the Adjudicator failed to make sufficient enquiry before making the determination;

(8)  the Adjudicator was wrong to demand evidence from the applicant because the applicant was being kept in the detention centre;

(9)  the Adjudicator failed to give sufficient chance to the applicant to arrange relevant evidence to support the claim.

DISCUSSION

The Direction’s Decisions

12.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.”

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

The Board’s Decision

14.Grounds (1) to (7) are only his opinion without any evidence to support. They fail.

15.Ground (2) is also his opinion without evidence to support. In fact, according to the fact found by the Adjudicator, this factor simply did not arise. This ground fails too.

16.Ground (8) fails too as the Adjudicator was entitled to require the applicant to prove his case.

17.Ground (9) fails because the applicant was unable to identify the evidence he intended to adduce to the Adjudicator.

18.I find that the applicant was unable to show that his proposed judicial review has any reasonable prospect of success.

CONCLUSION

19.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 11th day of September 2019

	(Thomas WAN)
	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 his 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 11/9/2019 Espiritu Christopher Caber 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 11/9/2019 The Director of Immigration 1^st Putative Respondent’s ref. no.: QA T/C 364/14 (formerly RBCZ/2887/09) The Torture Claims Appeal Board/Non-refoulement Claims Petition Office 2^nd Putative Respondent’s ref. no.: USM 178/14/9/5/F3 Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)