Galanza Rex Ubaldo v. Torture Claims Appeal Board /Non-refoulement Claims Petition Office and Another

HCAL 2408/2018

[2020] HKCFI 1652

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2408 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.This is the applicant’s application for leave to apply for judicial review of the Decision dated 26 September 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”) and the Decision dated 26 May 2017 of the Director of Immigration (“the Director’s Decision”) respectively.

2.The applicant was absent on the date of hearing. There being no evidence that the Notice of Hearing was not served on him or explanation for his absence, I shall therefore treat him as abandoning his right of being heard for his application. See Re Abdus Salam [2019] HKCA 1091 at §22.

The applicant

3.The applicant is a Filipino national. He came to Hong Kong on 20 October 2015 as a visitor and was permitted to stay until 3 November 2015. On 3 November 2015, he went to Lo Wu, left Hong Kong and then re-entered again on the same day as a visitor. He was permitted to stay until 17 November 2015. He overstayed. He surrendered to the Immigration Department on 30 November 2015. He raised his non-refoulement claim on 6 June 2016.

4.He claimed that if refouled, he would be harmed or killed by his former employer, Henry Aragona (“Henry”) and his followers because he was unable to repay the money he kept from his business.

5.The incidents as alleged by the applicant, took place as set out below.

a.He worked for Henry in a steel depot, buying and selling sold metal. He delivered the goods and collected cash from the customers and he banked in the money into Henry’s designated account.

b.In 2012, he lost in gambling. He kept the money himself. Altogether, he had kept 400,000 pesos for his own use. He lied to Henry that he had banked in the money, which was not true.

c.In 2013, knowing that he could not hide it from Henry any longer, he left his employment and went to Saudi Arabia where he had worked for about two years. In 2015, he returned to the Philippines.

d.He learned that Henry was still looking for him. He left for Macao and Hong Kong. He learned from his family that Henry was still looking for him. He considered that he would not be protected by police, who required bribe.

6.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”).

7.By the Director’s Decision, the Director rejected his claim for the reason that it was not substantiated. The Director found that the risk or harm as the applicant alleged was not real; state protection would be available to him and relocation was an option open to him. See paragraphs 21-23 of the Board’s Decision.

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision. He attended a hearing before the Adjudicator on 20 August 2018.

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

10.The Board considered the applicant’s evidence and agreed to the findings of the Director. It considered, for the reasons given [67-78], that there was no real risk for the applicant to return to the Philippines and that because of its finding, it was not necessary to consider state protection or internal relocation, though relocation was not harsh to him. See paragraphs 79-82.

Application for leave to apply for judicial review

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

12.In his affirmation in support of this application, he relied upon the grounds below.

1.Procedural impropriety – failure to conduct sufficient inquiry in the relevant country of origin conditions; failure to state sufficient reasons for conclusion of BOR 3 risk.

2.Error/misdirection in law – failing to consider psychological strains and threats to him personally.

DISCUSSION

The Director’s Decision

13.The applicant had not stated any exceptional circumstances to justify that notwithstanding his appeal of the Director’s Decision to the Board, he could still apply for leave to apply for judicial review of the Director’s Decision. The Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018 at §45 held 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. His application fails in limine. I dismiss his application against the Director’s Decision.

The Board’s Decision

14.The grounds in support of his application are irrelevant to the findings of the Director or the Board. Those findings relate to the credibility of his evidence.

15.I do not find any of his reasons attractive. The Board did not believe the facts of his case. As such, he has no factual basis in support of his case.

16.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.”

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

CONCLUSION

18.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 27^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