Rosales Patrick Leo Pelagio v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

Case No.HCAL 2424/2018[2020] HKCFI 1661

Court

High Court CFI

Date22 Jul 2020

Judge—

Case Document

100%Judiciary

HCAL 2424/2018

[2020] HKCFI 1661

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2424 of 2018

BETWEEN

	Rosales Patrick Leo Pelagio	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only; or
	consideration of documents and the Applicant being absent in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review of the Decision dated 27 September 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.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, 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 did not attend the hearing on 29 October 2019. I shall now consider his application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, the Court, on its own motion, amended Form 86 by deleting the Director of Immigration (“the Director”) as the respondent and by deleting the Board as the interested party.

The applicant

4.The applicant is a Filipino national. On 19 August 2016, he came to Hong Kong as a visitor. Since 3 September 2016, he overstayed. On 5 September 2016, he surrendered to the Immigration Department. On 11 April 2017, he raised a non-refoulement claim.

5.He claimed that if refouled, he would be harmed or killed by the family and people of a drug pusher as they were angry with him for causing the drug pusher to be jailed.

6.The incidents took place as set out below.

a.The drug was called Joshua, with whom his brother had dealings. His brother lent his motorcycle to Joshua for drug pushing. In July, the applicant discovered “ice” drug in his brother’s pocket. His brother admitted that he assisted Joshua in the drug business.

b.The applicant reported the matter to his father. The family held a meeting in which it was decided that his brother would fix a meeting with Joshua and they would inform police to come to arrest Joshua.

c.The plan was carried out and Joshua was arrested and was convicted and sentenced to life imprisonment.

d.Joshua’s family came to his house, threatening that they would revenge. They hanged around his house from time to time. He felt unsafe and moved to Arayat Pampanga to live in his cousin’s house in September 2015. He stayed there for five months and nothing happened.

e.With the help of his friend, he came to Hong Kong.

The Director’s Decision

7.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”).

8.By Notice of Decision dated 22 November 2017, the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that the level of risks was low [13]; state protection [15] and relocation [16] were available to him.

The Board’s Decision

9.The applicant appealed to the Board against the Director’s Decision. He attended a hearing before the Adjudicator on 2 May 2018.

10.By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decision.

11.The Board considered the applicant’s evidence and was of the view that the applicant had given inconsistent evidence before the Director and the Board and concluded that he was not a witness of truth and it rejected the facts as alleged by the applicant in support of his claim. See paragraphs 75 – 82 of the Board’s Decision.

Application for leave to apply for judicial review

12.The applicant filed Form 86 dated 31 October 2018 for leave to apply for judicial review of the Board’s Decision.

13.In his affidavit in support of this application, he did not state that the Board had committed any error in reaching its decision. He simply said that he did not agree with the Board.

DISCUSSION

14.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

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

CONCLUSION

16.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 July 2020

	(Mike Mak)
	for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 22/7/2020 Rosales Patrick Leo Pelagio Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 22/7/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 9378/17/12/45/F489 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2550/17(formerly RBCZ 10788/17) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

Cites 2 cases

Cases cited in this judgment