Rabang Keyver Veronia v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 2999/2018

[2020] HKCFI 887

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2999 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

The applicant

1.The applicant is a national of the Philippines. He came to Hong Kong on 15 October 2016 as a visitor and was permitted to stay until 29 October 2016. He overstayed and surrendered himself to the Immigration Department on 7 November 2016. He lodged his non-refoulement claim on 10 April 2017.

2.He claimed that if refouled, he would be killed as he was a drug user and as a result of the brutal anti-drug campaign of President Duterte which targeted drug-users and traffickers. He was addicted to drug in the Philippines and he quitted. However, he was wrongly accused of being a drug user by police. He was detained in the police station and was hit by baseball bat. His arms were hit by a water dispenser. His brother-in-law who was an influential helped to secure a discharge from the police. His other cousins, who were drug pushers, were sentenced to imprisonment. He worried that he might not be assisted again.

The Director’s Decision

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

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

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”).

4.By Notice of Decision dated 27 October 2017, (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.

The Board’s Decision

5.The applicant appealed to the Board against the Director’s Decision and he attended a hearing before the Adjudicator on 17 July 2018.

6.By Decision dated 23 November 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decision.

7.The Board considered the applicant’s evidence. It found that his evidence was not believable because of major discrepancies as to the central claim, with no explanation for those numerous and repeated inconsistencies and the version of his account being inherently implausible [50-52]. It finally came to the conclusion:

“53. There was no substantial ground in the claim for believing that the Appellant would be in danger of being subjected to torture or ill-treatment, if refouled. There was no real danger or risk that he would be killed. The Appellant did not have a genuine or substantial fear of ill-treatment in his country and he did not have any well-founded basis for any fear of persecution.”

Application for leave to apply for judicial review

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

9.Attached to Form 86 is a bundle of 21-page written submission that there was breach of procedural fairness; the Board having unlawfully fettered its discretion; the Board being unfair and irrational and having failed to meet the greater care to a self-represented claimant, the particulars of which I shall summarized below:

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

2.  the contents of the hearing bundle were in English and he was unable to obtain interpreter service;

3.  he was confused at the appeal hearing;

4.  the Adjudicator had not done sufficient research in the Country of Origin Information (“COI”), in particular, the situation in the Philippines, and her knowledge was not updated;

5.  the Adjudicator had relied upon hearsay information and outdated material in relation to COI;

6.  the Adjudicator had cherry-picked and given undue weight on the irrelevant material, neglecting the materials favourable to his case;

7.  the Adjudicator had not considered USHR 2010, USRF 2010 and The International Commission of Jurists (ICJ) “Report on the ICJ Mission to Philippines” Autumn 2011, which is favourable to his case;

8.  the Adjudicator failed to fulfil her obligation to obtain the requisite documents for her adjudication;

9.  BOR 2 risk was assessed without screening; and

10.  the applicant was not legally represented before the Board, which was in breach of procedural fairness.

DISCUSSION

10.The applicant appeared before me. He confirmed that he was free to tell his stories before the Immigration officer and the Adjudicator. He could read English himself.

11.It is obvious that the Board had, through examination and cross-examination of evidence, found facts of the case and concluded that the factual basis of the case did not support his claim.

12.The Court of Appeal in Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22 held that the applicant does not have the absolute right of free legal representation at every stage of the proceedings.

13.The applicant has the burden to raise substantive grounds for his application, with particulars and explanation as to why he considers those grounds support his application. See Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 at §29；TK v Jenkins & Another [2013] 1 HKC 526, C.A. at §25.

14.This fundamental burden applies at every stage of the proceedings though the court has the duty of applying the enhanced standard of fairness in the assessment of his case. A general statement or comment without identifying the facts or issues is simply not sufficient.

15.The Court of Appeal in Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14 held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them.  The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

16.I shall deal with his grounds.

17.He has confirmed that he had no problem with the hearing bundle for the appeal as he could read the bundle himself. To say that the Director did not have another screening for BOR 2 risk is entirely wrong as BOR 2 risk was assessed in the same assessment. All other grounds do not sustain as they are either opinions or irrelevant to the Board’s finding of the facts.

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 22^nd day of May 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