Ling-ayo Jessie Fernando v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1604/2018

[2020] HKCFI 164

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1604 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 there are any further grounds in support of the application. In response to the Court’s invitation, the applicant attended the hearing on 10 July 2019.

2.I have identified the following defects in Form 86 for his application:

1.     he had written his name as the respondent;

2.     he had only applied for leave to apply for judicial review of the Board’s decision on BOR2 risk assessment by the Director, leaving the Board’s decision of the Torture risk, BOR 3 risk and the Persecution risk unattended;

3.     if his application includes the Board’s decision on the other risks, his application would be out of time although his application for judicial review of the Board’s decision on BOR 2 risk is within time.

3.Pursuant to the powers under O.53, r.3(6), O.20, r.8 and O.53, r.4 RHC, I shall rectify the above irregularities by:

1.     deleting his own name as respondent and the Board be added as the respondent (O.20, r.8);

2.     adding the relief of leave to apply for judicial review of the Board’s Decision dated 23 January 2017 (O.53, r.3(6)); and

3.     extending time for application for leave to apply for judicial review of the Board’s Decision dated 23 January 2017 to coincide with the time for the Board’s Further Decision dated 3 August 2018 (O.53, r.4). This is because the applicant was unrepresented and the Director’s Decisions should cover all the four risks; the Board had considered all the facts covering the four risks in its assessment of the matter and there is no prejudice to the public interest in this case.

4.The applicant’s present application is against the Board’s decisions covering all the risks, including the BOR 2 risk.

The applicant

5.The applicant is a national of the Philippines. He came to Hong Kong on 14 October 2012 as a visitor and was permitted to stay for 14 days. He overstayed. On 20 October 2013, he was arrested for being an illegal immigrant and he was referred to the Immigration Department. On 3 March 2014 he lodged a non-refoulement claim.

6.In support of his claim, he said that if refouled, he would be harmed or killed by the gambling collectors in his locality because he believed that the gambling collectors had mistaken that he had reported against their illegal gambling to police.

7.He was a peacekeeper in his own country. On 6 October 2012, the police raided a gambling establishment at the locality. He happened to be somewhere near the place.  On 9 October 2012, four unknown men went to his home and asked his wife if he was there. At that time, he was not there. They told his wife that when they saw him, they would kill him. Upon being told by his wife, he was scared and moved his family to his mother’s house. He came to Hong Kong himself, leaving his family behind.

The Director’s Decisions

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

a.     risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.     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

c.     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”).

9.By Notice of Decision dated 8 April 2015 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.

10.By letter dated 21 March 2017, the Director asked the applicant to supply further information in relation to BOR 2 risk – right to life, which would be assessed separately as well. The applicant repeated what he had said for the other risks.

11.By Notice of Further Decision dated 6 June 2017 (“the Director’s Further Decision”), the Director rejected his BOR 2 risk claim as well.

The Board’s Decisions

12.The applicant appealed to the Board against the Director’s Decision and he attended a hearing before the Adjudicator on 1 June 2016.

13.By Decision dated 23 January 2017 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decision.

14.The Board then received another appeal against the Director’s Further Decision on BOR 2 risk. Having considered that the applicant had added nothing to support his claim on BOR 2 risk, the Board decided not to hold an oral hearing. It decided to deal with the appeal on the papers.

15.By another Decision dated 3 August 2018 (“the Board’s Further Decision”), the Board rejected the applicant’s appeal against the Director’s Further Decision.

16.The Board considered the applicant’s evidence and, for the reasons set out in the Board’s Decision came to the conclusion below:

1.     The applicant failed to show that there was a reasonable possibility there, were he returned to the Philippines, he would face a risk in the future of a serious violation of his human rights, serious or intolerable harm [39A(h)];

2.     It did not accept that the applicant would face a genuine and substantial risk of being subjected to severe ill-treatment if he was refouled to the Philippines [39B(c)];

3.     The applicant’s past experiences did not amount to torture as defined by section 37U of the Ordinance [39C(a)];

4.     The applicant’s risk was confined to a certain locality. There was no circumstance that would make it unreasonable for him to relocate elsewhere in the Philippines [45].

17.In the Further Decision, the Board set out further conclusions:

1.     there was no evidence showing that the applicant would be at risk of harm from capital punishment inflicted by the government of the Philippines, or face harm from the Filipino government that would place his life at risk [12];

2.     his family remained living in the Philippines and there was no evidence to show they were subjected to any risk and that the government was involved in the visit to his home [13 (a) to (c)];

3.     state protection was available to him [13(d) & (e)]; and

4.     he was not a person of interest to the Filipino government [13(g)].

Application for leave to apply for Judicial Review

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

19.In his affidavit, he had not set out any reason in support of his application other than attaching the relevant documents in the hearing bundle and the Board’s Further Decision.

DISCUSSION

The Board’s Decisions

20.The applicant appeared before me. He confirmed that he was treated fairly when he appeared before the immigration officer and the Board. He could read the Director’s Decisions and the Board’s Decisions himself.

21.Since the applicant had not given further information in support of his appeal against the Director’s Further Decision on BOR2 risk, the Board was correct to come to its decision that no oral hearing would be necessary and assess the applicant’s appeal on the paper.

22.The Court of Appeal in Re: Moshsin Ali [2018] HKCA 549 held that the findings of fact by the Adjudicator was final [42], subject to judicial review.

23.There is nothing to show that the Board has committed any error in its application of the laws to the case or in coming to its conclusion on the facts of the case.

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

CONCLUSION

25.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