Celso Noel Abenojar v. Torture Claims Appeal Board/ Non-refoulement Aims Petition Office

HCAL 456/2019

[2021] HKCFI 169

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 456 OF 2019

BETWEEN

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 the documents and oral submission by the Applicant in open court.

Order by Deputy High Court Judge C P Pang:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.This is an application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) confirming the decision of the Director of Immigration (“the Director”) refusing the applicant’s claim of non-refoulement protection.

2.The applicant, born in 1970, is a national of the Philippines.  He first arrived in Hong Kong in 1991 to take up employment as a domestic helper.  His last contract was terminated in 2002 and since then he overstayed unlawfully in Hong Kong.  He was arrested by the police in February 2015 and referred to the Immigration Department for investigation.  He then lodged a non-refoulement claim and was subsequently released on recognizance.

3.The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at [11-13] of the decision of the Board.  Put simply, the claim was based on the fear that, if refouled, the applicant would be harmed or even killed by his wife and her family members as he was unfaithful to his wife.  In about 2001 or 2002, his wife saw him leaving a hotel with another woman at Yuen Long, Hong Kong.  His wife slapped him and kicked him.  Later, her family members called him threatening that he would be killed if he returned to the Philippines.  They continued to contact his sister to ask about his whereabouts.  He last saw his wife in Hong Kong in about 2002 or 2003 when she gave him a letter.

The Director’s decision

4.By a notice of decision dated 10 April 2018, the Director rejected the applicant’s non-refoulement claim on all applicable grounds for the reason that the claim was not substantiated.  The decision covered the BOR 2 risk^[1], BOR 3 risk^[2], the persecution risk^[3], and the torture risk^[4]. The applicant lodged an appeal/ petition to the Board against the Director’s decision.  He attended a hearing on 13 December 2018 before the Board and gave oral evidence at the hearing.

The Board’s decision

5.By a decision dated 12 February 2019, the Board rejected the appeal/ petition confirming the Director’s decision.  The Board’s decision covered all applicable grounds.

6.The Board gave detailed reasons for rejecting the claimat [27-33] of its decision.  In a nutshell, the Board found doubts with the truthfulness of the applicant’s claim and that the delay in the lodgement of the application for non-refoulement protection raised concerns that he had fabricated his claim following his arrest by the police.  The Board accepted that his wife discovered that he was having an affair and that she and her family members might have threatened him at that time.  However, the incident happened in 2001 or 2002 and he had not been directly threatened since then.  Even on his evidence, he did not know when his wife returned to the Philippines or where she currently lives.  It did not accept that her family members would continue to go to his sister’s home asking about him.  Moreover, he could safely relocate to another part of the Philippines.

7.The Board came to the conclusion that there were no substantial or strong grounds for believing that the Appellant would be at real risk of being subjected to torture or ill-treatment, if refouled.

Application for leave to apply for judicial review

8.The applicant filed a Form 86 on 18 February 2019 for leave to apply for judicial review of the Board’s decision.  He did not request an oral hearing.  The application is therefore considered on the papers.

9.In his affidavit, the applicant stated that the Board disregarded his dangerous situation.

Discussion

10.The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  The role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence and COI materials, 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, procedural unfairness or irrationality in the decision of the Board.

11.As the Director’s decision has been superseded by the Board’s decision, it is not susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549.  Therefore, while the Court examines the decisions of the Director and the Board, the Observations for the Applicant will only focus on the latter’s decision.

12.In the present case, the Board rejected the applicant’s appeal/ petition on the ground that it had doubts about the truthfulness of the applicant’s claims and his delay in lodging his claim raised concerns that he had fabricated his claims.  It also found that internal relocation is a reasonable option for the applicant.  There was no substantial or strong ground for believing that the Appellant would be at real risk of being subjected to torture or ill-treatment, if refouled.  As mentioned above, such assessment and findings are within the province of the Board and the Director.  The court will not interfere with the same unless they are reversible on the public law grounds.

13.Indeed, the applicant’s conduct in the delay in lodging his claim damaged his credibility and was inconsistent with someone in genuine fear for his life and safety.

14.The complaints raised by the applicant are primarily asking for a rehearing having no basis in support at all.  He did not pinpoint any procedural irregularity, unfairness or unreasonableness of the Board.

15.The Boardengaged in a joint endeavour with the applicant and considered all relevant criteria, gave the applicant a reasonable opportunity to state his case, and enquired into the issues appropriately.  There cannot be any criticism of its determination which is eminently reasonable.

16.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, irrational findings, or procedural unfairness in either of them, or any failure on their part to apply high standards of fairness.

Disposition

17.For the reasons given, there is no prospect of success at all in the applicant’s intended application. I accordingly refuse to grant leave to apply for judicial review.

Dated 26 January 2021

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