Gaco Nomer Bergonia v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 1855/2018

[2020] HKCFI 1842

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1855 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 23 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant appeared before the Court.

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 31 August 2009 as a visitor.  He was allowed to stay until 5 September 2009.  He overstayed and was arrested on 24 November 2009.

5.On 27 September 2009, he lodged his claim made under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the “Convention”) that he would be subjected to torture in the Philippines if he was returned there.  This claim was subsumed in the Unified Screening Mechanism, which commenced on 3 March 2014.

6.He claimed that if refouled, he would be harmed or killed by an anti-government group named Alex Boncayao Brigade (Southern Luzon) (the “ABB”) because the ABB suspected that he had reported to the police about their assassination.  This happened because his nephew, Chivas who was a member of the ABB had taken him to witness the murder of a male corrupt government official in Manila.  The ABB was a breakaway of the anti-government rebel group, the New People’s Army and it was influential nationwide.  The ABB members in the murder were arrested by police. Chivas was arrested too.  They suspected the applicant to be the informant and would kill him if they found him.  He also feared that the ABB was affiliated with the police and they would frame up a false case against him.  Therefore, he came to Hong Kong on 4 August 2009.

The Director’s Decisions

7.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”).

8.By Notice of Decision dated 22 January 2015 (“the Director’s Decision”), the Director refused his claim on Torture risk, BOR 3 risk and Persecution risk for the reason that his claim was not substantiated.  The Director found that the level of risk that he returned to the Philippines was low [12]; that state protection would be available to him [14] and that relocation was an option open to him [15].

9.By Notice of Further Decision dated 17 May 2017, the Director found that he was unable to establish BOR 2 risk.

The Board’s Decision

10.The applicant appealed to the Board against the Director’s Decisions.  He attended a hearing before the Adjudicator on 3 February 2016.

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

12.The Board considered the applicant’s evidence and found that the applicant was unable to make out his case on any of the risks above.  The reasons that the Board had given for its conclusion are set out in paragraphs 21-29 of its Decision and are summarized below.

a.There was no evidence that he had sustained any serious pain or suffering or he was attacked by any state agent [28 & 29] and that the ABB group still existed in the Philippines [21].

b.There was no evidence of the location of the assassination of the person killed.

c.He was able to find another place in the Philippines where he could settle without being discovered by the ABB.

d.There was no reason that he could not find a work in the new location.

Application for leave to apply for judicial review

13.The applicant filed Form 86 on 6 September 2018 for leave to apply for judicial review of the Board’s Decision.

14.In his affirmation in support of his application, he said that the Board was wrong for the reasons below.

1.The fact that he did not suffer, sustain serious pain or any torture does not mean that these would not happen to him in the future.  He was the top suspect on their list.

2.Chivas’ sister, Castle had told him that the ABB Group would still take revenge on him.  It was wrong for the Board to say that he had not established his fear.

3.Castle had also told him that other people had been killed by the ABB as part of their revenge and they would still have the grudge against him.

DISCUSSION

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

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 Board had raised the question that there was no evidence to show that the ABB still exits and there was no evidence on the location of the murder.

18.The Board had not raised the above factual issues with the applicant and required him to provide it with evidence to support those issues at the hearing.

19.The Court of Final Appeal in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 held that high standards of fairness required the Secretary (Director) to give every opportunity to the applicant to establish his claim (the burden being solely on him); the claim being properly assessed by the Secretary [51].

20.The Court of Appeal in Re: TK v Jenkins & Another [2013] 1 HKC 526, C.A. held that high standards of fairness:

“High standards of fairness certainly do not entitle the torture claimant, having stated a claim, “to simply sit back and require the Director to disprove it.” [25]”

21.It will therefore be incumbent upon the Board to demonstrate that attempts had been made to conduct a joint enterprise to find out whether the ABB still exists and the location of the murder.  From the Board’s Decision, there is nothing to show that the Board had made the attempts in the course of the hearing.

22.Ground (1) may have some force, given the fact that the Board had not demonstrated high standards of fairness in the finding of the facts.  Grounds (2) and (3) are hearsay evidence.  However, this is a matter of weight for the assessment of the evidence.

23.The Board had also found that internal relocation is an option open to the applicant.  The applicant did not challenge this finding.  In the TK v Jenkins & Another case, the Court of Appeal held:

“… if the risk of persecution or torture is a localised one, and it is not unreasonable, unsafe or unduly harsh for the refugee or claimant to relocate to another part of the country in question (the ‘internal relocation alternative’), there is no justification for affording international protection under either the Refugees Convention 1951 or the CAT [32].”

24.InPeter Po Fun Chan (2007) 10 HKCFAR 676 §14, the Court of Final Appeal held that the test for whether leave should be granted to the applicant to have judicial review of the authorities’ decision was whether the applicant could show that he had a reasonable prospect of success in his intended judicial review.  Its purpose is to prevent public authorities from being unduly vexed with unarguable challenges.

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

CONCLUSION

26.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