Ortega Marcelo Jr. Espinosa v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office and Another

HCAL 1624/2018

[2020] HKCFI 1021

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1624 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. The applicant did not attend the hearing on 15 August 2019. I shall assess his application on the papers.

The applicant

2.The applicant is a national of the Philippines. He came to Hong Kong on 13 April 2016 as a visitor and was permitted to stay until 27 April 2016. He overstayed. On 25 April 2016, he was arrested for attempted theft. On 8 March 2017 he lodged a non‑refoulement claim.

3.In support of his claim, he said that if refouled, he would be harmed or killed by Las Canyas, a police officer and his Davao Death Squad. He also worried that he might be arrested and killed by Rodrigo Duterte as he had won the presidency.

4.He was a drug addict himself for some 20 years. In 2007, the village chief told him that he and his nephew, Robert Lee Saigado (“Robert”) and his wife’s nephew, Ignacio were on the list surveillance by the regional government of Davao City, where he lived. He was advised to leave the place. On 28 February 2008, Ignacio was shot and killed by three masked people. He believed it was done by Las Canyas and his Davao Death Squad. On 29 September 2012, he witnessed Robert to be shot and killed by a guy on the motorbike. On 4 December 2012, his wife passed away. He was in great sorrow and he toured around the other countries. He finally chose Hong Kong for his designation where he would seek asylum as Duterte had become the President of the Philippines. He was notoriously hard on drug users.

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 23 October 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 against the Director’s Decision and he attended a hearing before the Adjudicator on 14 June 2018.

8.By Decision dated 8 August 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 the conclusion that the applicant was not a truthful witness as shown by evidence below [50].

a.     The applicant fabricated his claims [51].

b.     He was not speaking the events from his experience, fabricating evidence in response to the Adjudicator’s concerns [53 & 54].

c.     His evidence was confused and inconsistent [56].

d.     He came to Hong Kong in 2016, but he did not lodge claims for protection until March 2017, saying that he did not know that he could ask for protection, which strongly indicated that he was fabricating [57].

10.The Board was not satisfied any of the applicant’s claims regarding his long term use of Ice, his name on a list or the murder of his relatives were truthful [59].

Application for leave to apply for judicial review

11.He filed Form 86 dated 13 August 2018 for leave to apply for judicial review of the Director’s Decision and the Board’s Decision.

12.In his affidavit, he had not set out any reason in support of his application other than asking the Court to review the Board’s Decision.

DISCUSSION

The Director’s Decision

13.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.

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

15.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.”

16.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

17.Since the applicant did not attend the hearing, I was unable to obtain further information from him. His reason in his affidavit does not amount to valid reason in support of his application.

18.It is obvious that the Board did not accept the facts in support of his claim.

19.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. However, there is no evidence to show that the Board was in error in coming to its conclusion.

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

CONCLUSION

21.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 5^th day of June 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