Dalope Richard Cristobal v. Torture Claims Appeal Board

HCAL 2153/2018

[2020] HKCFI 2061

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2153 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 Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 30-year-old national of the Philippines who arrived in Hong Kong on 7 August 2013 with permission to remain as a visitor up to 21 August 2013 when he did not depart and instead overstayed, and on 28 July 2015 he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to the Philippines he would be harmed or killed by the local drug gang for refusing to participate in their illegal activities.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Quezon City, the Philippines.  He worked in various odd jobs and lived with his mother in his home district.

3.In late 2012 he came to know and get along with some young men in the neighbourhood whom he later realized were part of a gang dealing in illegal drugs.  In early 2013 they started to demand that he joined in their illegal activities, and when he refused, they then beat him and threatened to kill him if he still refused to do so, and as he became fearful for his life, he therefore departed the Philippines on 7 August 2013 for Hong Kong where he overstayed, and upon his surrender to the Immigration Department he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 2 January 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

4.By a Notice of Decision dated 15 February 2018 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“persecution risk”).

5.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from those local gangsters upon his return to the Philippines as low due to the low intensity and frequency of past ill-treatment from them, that after all these years that it is doubtful that they would still have any adverse interest in him, that in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in the Philippines with a large population of 104 million people spread across a vast territory of more than 300,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of the Philippines away from his home district in large cities such as Cebu or Palawan where it would be difficult if not impossible for those local gangsters to locate him.

6.On 28 February 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 9 July 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 2 October 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

7.In its decision the Board found the Applicant’s evidence as to his claim vague, inconsistent and conflicting with those given to the Director that it did not accept that he was a credible witness, that the credibility of his claimed fear of harm from those gang members was further undermined by the fact that he never sought non-refoulement protection when he first arrived in Hong Kong in 2013 until almost 2 years later in 2015 when he first raised his claim which it found inconsistent with his claim to fear harm upon his return to the Philippines, and that in any event it did not accept his claimed fear of being located by that local gang in his home district if he was to relocate to other part of the Philippines that his claim for non-refoulement protection failed on all applicable grounds.     

8.On 8 October 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and putting forward the following grounds for his intended challenge:

(1) misdirection in law in that the adjudicator wrongly took into account that the Applicant had to have experienced torture in the past in order to establish substantial grounds to believe that there was a risk of torture in the future;

(2) procedural impropriety/unfairness in the adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of his claim;

(3) irrationality in the adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of his claim;

(4) irrationality in the adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in the Philippines;

(5) irrationality in the adjudicator’s failure to analyze and assess whether state protection exists in the Philippines and misdirected himself as to the extended meaning of state protection;

(6) irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(7) procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the Applicant;

(8) procedural impropriety/unfairness in the adjudicator applying the incorrect standard of proof in his decision; and

(9) procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the Applicant resulting in unfair procedure.  

9.These are however all just broad and vague assertions of the Applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the adjudicator had erred in the decision, or in what way did the adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case, or in what way was his legal representation from his assigned lawyer insufficient.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for his intended challenge.

10.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

11.The only other complaint which the Applicant appeared to have made with any elaboration was about the hearing bundle being provided to him only a few days before his appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given him insufficient time to prepare for his appeal.

12.Even if it is true that the hearing bundle indeed came to him late as alleged, and the Applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including his NCF, records of his screening interviews and the Director’s decisions should be well familiar to the Applicant as they had earlier all been made available to him when he still had legal representation, whilst his NCF was completed on his own instructions with legal assistance, and that at his oral hearing he never raised any issue or requested the adjudicator for further time to enable him to better prepare for his appeal.  Accordingly I do not find anything amiss arising from the hearing bundle for the Applicant in his appeal before the Board.

13.Essentially his claim was rejected by the Board on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 75 – 84 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.  

14.Furthermore, the fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of the Philippines, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

15.In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

16.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.

Dated the 24^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