Torres Alexander Gallega v. Torture Claims Appeal Board and Another

HCAL 1226/2018

[2020] HKCFI 1412

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1226 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 Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 40-year-old national of the Philippines who last arrived in Hong Kong on 26 September 2014 with permission to remain as a visitor up to 1 October 2014 when he did not depart and instead overstayed until 8 October 2014 when he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to the Philippines he would be harmed or killed by his creditor for failing to repay his loans.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Dinalupihan, Bataan, the Philippines.  When he was around 7 years old, he was infected with poliomyelitis resulted in difficulty in walking.

3.After leaving school, he worked as a technician ina local repair shop, and in 2008 he met his girlfriend with whom he soon started to cohabit in Santo Nino in his home district.

4.In 2009 his girlfriend gave birth to their daughter, for which the Applicant borroweda loan from his neighbor Aguilar who was a local school teacher to meet the hospital expenses.  

5.For the next several years the Applicant would from time to time borrow from Aguilar various sums to meet his own or his family’s expenses, and for which he would make monthly interest payments to Aguilar.

6.In 2011 he broke up with his girlfriend who then came to work in Hong Kong as a foreign domestic helper, while the Applicant remained in the Philippines taking care of their daughter.

7.He however lost his job in 2011 and relied on borrowing from Aguilar to meet his living expenses, but as he was unable to find another job, by December 2013 he was unable to make any interest payments to Aguilar, and as a result Aguilar became very upset, had punched him on the face and threatened to kill him unless he paid up his entire outstanding loans.

8.The Applicant then reported the threats to the local police, for which the police arranged a conciliation meeting between them during which the Applicant offered to repay his loans by instalments while Aguilar also agreed not to make any further threats against him.

9.However, when the Applicant started to have difficulty making his loan repayments again, he moved to stay at his relative’s place in Daang Bago to hide from Aguilar, but in August 2014 when he heard that one of Aguilar’s relatives was elected as a village councilor,he became fearful that Aguilar would then have the resources of locating him, and so he decided to leave the Philippines, which he did on 26 September 2014 for Hong Kong where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 11 August 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

10.By a Notice of Decision dated 28 August 2017 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

11.In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that he would be in danger of being harmed or killed by his creditor upon his return to the Philippines due to the low intensity and frequency of past ill-treatment from him, that it was a private monetary dispute between them without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in the Philippines with a large population of 102 million people spread across a vast territory of more than 300,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with work experience to move to other part of the Philippines away from his home district in large cities such as Manila or Cebu where it would be difficult if not impossible for his creditor to locate him.

12.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 10 May 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 19 June 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

13.In its decision the Board found significant gaps, inconsistencies and other problems with the Applicant’s evidence that it did not accept that he had ever borrowed any money from Aguilar or that he was ever threatened or harmed by Aguilar or that there is any real risk that he would face upon his return to the Philippines, and concluded that his claim for non-refoulement protection failed on all applicable grounds.  

14.On 29 June 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in his supporting affidavit of the same date he put forward the following grounds for his intended challenge:

(1) procedural impropriety in their failure to properly consider his fear of harm and ill-treatment from his creditor upon his return to his home country;

(2) procedural impropriety in their decisions that his problems with his creditor was a personal matter without taking into account the risk that he would be harmed and tortured by his creditor;

(3) that they failed to properly consider the COI that police in the Philippines are corrupt and would not be able to protect him from his creditor; and

(4) that they failed to take into account the handicap with his leg which has affected his ability to walk when considering internal relocation in his case.  

15.These are however just broad and vague assertions of the Applicant containing several key words and phrases but without any relevant particulars or specifics or elaborations as to how they applied to his case or how the Director or the adjudicator had erred in their decisions, or in what way did the adjudicator fail to take into account relevant COI or beingselective or improperly rely on irrelevant COI, while it is plainly incorrect for the Applicantto assert that the Board failed to take into account the handicap with his leg when considered it would be safe for him to return to the Philippines, which the adjudicator clearly did in paragraph124 of the decision.  As such and in the premises I do not find any of his complaints reasonably arguable for his intended challenge.

16.As has been repeatedly emphasized by the Court of Appeal, evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant,as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

17.In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 96 – 125 of its decision with the benefit of hearing his oral testimony and his answers to questions raised of his claim during his appeal hearing before the Board, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant with sufficient particularity, I do not find any reasonably arguable basis for him to challenge the finding of the Board.

18.The fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of the Philippines, a decision also confirmed by the Board,there is simply no justification to afford him with non-refoulement protection in Hong Kong:see TK v Jenkins & anor [2013] 1 HKC 526.

19.In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

20.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.

Dated the 8^th day of July 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