Guisinga Marcelino Jr Ganacias v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 1718/2018

[2020] HKCFI 1843

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1718 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 15 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant was absent at the hearing on 15 July 2020, I shall deal with his application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 was amended by adding the Director of Immigration (“the Director”) as interested party.

The applicant

4.The applicant is a Filipino national.  He came to Hong Kong on 6 May 2014 as a visitor.  He was allowed to stay until 20 May 2014.  He overstayed and surrendered to the Immigration Department on 7 July 2014.  He lodged his non-refoulement claim on the same day. He claimed that if refouled, he would be harmed or killed by the Moro Islamic Liberation Front (“MILF”), or particularly, Abdulah.  He claimed that he was a Catholic.  Members of the MILF invited him to join them.  He refused.  They were terrorists and powerful.  They threatened him that they would kidnap him, harm him badly or even kill him.  That is why he came to Hong Kong.

The Director’s Decision

5.The Director considered his application in relation to the following risks:

a.risk of torture under Part VII C 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 27 March 2018 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.  The Director found that the future risk as he alleged if he returned to the Philippines was unlikely to materialize [13]; that state protection would be available to him [17] and that relocation was an option open to him [19].

The Board’s Decision

7.The applicant appealed to the Board against the Director’s Decision.  He attended a hearing before the Adjudicator on 19 June 2018.

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

9.The Board considered the applicant’s evidence and found that it did not believe that he was identified and targeted to be a person that must join the MILF, alive or dead [37] and that his fear of being harmed seriously or killed by MILF was well-founded [41].

10.Although the Board did not deal with the issues of state protection and relocation in its Decision, which were dealt with in the Director’s Decision, the Board did not find it necessary to deal with these issues as it found against the applicant on the factual issues.  However, it did not rule against the Director’s findings on state protection and the option of internal relocation being open to the applicant.

11.As the Board found against him on the facts, all grounds in support of his claim failed.

Application for leave to apply for judicial review

12.The applicant filed Form 86 on 22 August 2018 for leave to apply for judicial review of the Board’s Decision.

13.In his affidavits in support of his application, he said that the Board did not understand his situation because he considered that the MILF was still targeting him.

DISCUSSION

14.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

15.The Board did not accept the applicant’s factual evidence in support of his claim.  He therefore has no factual basis in support of his claim.

16.In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them.  The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

17.The Court does not find any error of law or procedural unfairness in the Board’s Decision.  The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

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 4^th day of August 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