Salvador Eric Garcia v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

HCAL 1570/2018

[2020] HKCFI 166

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1570 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 K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicant is not legally represented and he did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court (“RHC”), by letter, invited the applicant to appear before it in order to explain the above to them. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if the applicant had a fair screening before the Immigration office and the Board and if there are any further grounds in support of the application. However, the applicant failed to appear before this Court. This Court will now consider his case on the paper.

2.This is the applicant’s application for leave to apply for judicial review against the decision of the Director of Immigration. However, Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) should be the proper party for his application. In order to properly consider the applicant’s application, this Court shall, pursuant to Order 15, rule (6)(2) of the RHC and upon its own motion, add the Board as the putative respondent as it is the eligible party for the applicant’s application under the law. See Re: Moshsin Ali, [2018] HKCA 549 (CACV 54/2018) §45.

The applicant

3.The applicant is a national of the Philippines. He came to Hong Kong on 21 June 2015 as a visitor and was permitted to stay until 5 July 2015. He overstayed. On 20 January 2016, he was convicted of “breach of condition of stay” and was sentenced to two weeks’ imprisonment, suspended for three years. On 17 April 2016, he was arrested by police for possession of an illegal drug. He was convicted and fined $1,200. On 22 February 2016, he lodged a non-refoulement claim.

4.In support of his claim, he said that if refouled, he would be harmed or killed by a drug syndicate. Back in 2015 when he was in the Philippines, he had a close friend called Mark, who was a drug peddler. Mark’s boss (“the Boss”) and Mark framed him up as if he had taken away some proceeds of the drug sold. On 5 March 2015, he was beaten up by six people. He sustained injuries all over his body. He had to be hospitalized for 5 days. He did not report this incident to police as he feared this criminal syndicate would harm him further. He avoided them by staying in his aunt’s house. His mother, who has been working in Hong Kong for about 13 years advised him to leave the Philippines and come to Hong Kong. He understood that this criminal syndicate had a wide network, to he might not be able to relocate himself. He came to Hong Kong.

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 20 January 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.

The Board’s Decision

7.The applicant appealed to the Board and he attended a hearing before the Adjudicator on 13 June 2018.

8.By Decision dated 31 July 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decision.

9.The Board considered the applicant’s evidence and, for the reasons set out in the Board’s Decision, came to its conclusion refusing his appeal and confirmed the Director’s Decisions for the reasons below.

1.     It was not satisfied that the applicant was a truthful witness and she considered he had fabricated his claims for non-refoulement protection [42].

2.     The applicant had given written and oral evidence. His evidence was inconsistent in significant respects [43].

3.     His evidence as to what he feared upon his return to the Philippines was also somewhat confused and inconsistent [45].

4.     His evidence as to the name and identity of the Boss and his evidence about the attackers and witnesses was also vague and unpersuasive [46].

Application for leave to apply for Judicial Review

10.He filed Form 86 for leave to apply for judicial review of the Director’s Decision and the Board’s Decision.

11.In his affidavit dated 8 August 2018, he stated that the Director had disregarded his dangerous situation [in the Philippines].

DISCUSSION

The Director’s Decision

12.In the decision 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 held that the applicant could not apply for judicial review of the Director’s Decision without exceptional circumstances because he had appealed to the Board, which was established by statute with wider power of investigation into the facts of the matter. The Board had already heard the appeal and made its Decision.

13.The applicant has not set out any exceptional circumstances.

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.The applicant’s application for leave to apply for judicial review of the Director’s Decision therefore fails in limine. I dismiss his application.

The Board’s Decision

16.The Court of Appeal in Re: Moshsin Ali [2018] HKCA 549 held that the findings of fact by the Adjudicator was final, subject to judicial review [42]. There is nothing that shows that the Board was in error in coming to its decision.

17.It is obvious that the Board placed no weight on his factual evidence. He has no factual basis in support of his claim. The content of his affidavit does not amount to any ground to challenge the Board’s Decision.

18.The applicant fails to show that he has any reasonable prospect of success in his proposed judicial review.

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 the intended judicial review. Accordingly, I dismiss his application.

Dated the 14^th day of January 2020

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