Case Document

100%Judiciary

HCAL 1884/2018

[2020] HKCFI 1757

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1884 of 2018

BETWEEN

	Eduardo Jagame Ogabar alias Antonio Jr Arana Delante	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 oral submission by the Applicant 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 31 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with his application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended by replacing Immigration Department with the Board as proposed respondent and the Director of Immigration (the “Director”) as interested party.

The applicant

4.The applicant is a Filipino national. Between June 2014 and July 2015, he had entered Hong Kong and was deported back to his own country after he had been arrested and convicted a number of offences. His last entry in Hong Kong was on 16 November 2015 as a visitor and was permitted to stay until 30 November 2015. However, he committed an offence of theft and was convicted and sentenced imprisonment. He lodged his non-refoulement claim with the Immigration Department.

5.He claimed that if refouled, he would be harmed or killed by the Philippine Police, motorcycle riding-in-tandem and a drug dealer whom he fought with in 2013 (the “Dealer”).

6.He claimed that on 17 December 1990, his brother, who was also a drug pusher like himself, was killed by Mr. Matobato, who was hired by a policeman, Mr. Arthur Lascanas. He was not at the scene when his brother was killed because he was forewarned by Lascanas and he left the place. His brother did not leave because his children were living at that place. Mr Duterte is the president, who is famous for killing drug dealers or drug addicts. He was afraid that he would be killed by police if he returned. He also feared the motorcycle riding-in-tandem. They were people who would kill drug addicts or drug pushers. He had heard that a drug dealer, who left the airport and was killed outside by the motorcycle riding-in-tandem. In 2013, he fought with a drug dealer regarding drugs. This drug dealer’s father had a wide network of families. He was afraid that he might be killed by him.

The Director’s Decision

7.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”).

8.By Notice of Decision dated 28 November 2017 (“the Director’s Decision”), the Director refused his claim on all risks for the reason that his claim was not substantiated. The Director found that the number and nature of inconsistencies were sufficiently serious to undermine the reliability of his evidence on the facts of his case [13-27]; that state protection would be available to him [33] and internal relocation was an option open to him [41].

The Board’s Decision

9.The applicant appealed to the Board against the Director’s Decision. He attended a hearing before the Adjudicator on 17 April 2018. The Adjudicator of the Board raised questions with the applicant.

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

11.In its Decision, the Board considered the applicant’s evidence and for the reasons set out in paragraphs 48-62, it found that there were “numerous and significant inconsistencies in nearly all aspects of the Appellant’s evidence, the Board is of the opinion that it is not unreasonable to conclude the Appellant has concocted all his claims and that he is not a witness of truth.” It rejected his evidence on the facts in support of his claim. It did not accept that the applicant had a genuine fear of harm from either the Philippines police, the Kitsung brothers, the Davao Death Squad or any rival drug dealers because he was or is a drug dealer [63].

Application for leave to apply for judicial review

12.The applicant filed Form 86 on 10 September 2018 for leave to apply for judicial review of the Board’s Decision.

13.In his affidavit in support of his application, he said that the Board had disregarded his dangerous situation.

DISCUSSION

14.It is obvious that the Board had rejected all the facts in support of his application. As such, he has no factual basis for his claim.

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

“ 13.… …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.”

16.The ground that he has raised in support of this application does not assist him.

17.There is no evidence to show that the Board erred in the finding of the facts or the application of the laws to his case.

18.The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.

CONCLUSION

19.I therefore refuse to grant leave to the applicant to apply for his intended judicial review. Accordingly, I dismiss his application.

Dated the 31^st 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 31/7/2020 Eduardo Jagame Ogabar alias Antonio Jr Arana Delante 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 31/7/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 9449/17/12/116/F492 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 3117/17 (formerly RBCZ 11327/17) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)