Dael Roniel Bergula v. Torture Claims Appeal Board

HCAL 1222/2019

[2021] HKCFI 363

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1222 of 2019

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;     or
	consideration of the documents and oral submissions by (counsel for) the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 29-year-old national of the Philippines who arrived in Hong Kong on 15 September 2011 with permission to remain as a visitor up to 29 September 2011 when he did not depart and instead overstayed, and on 6 February 2012 he surrendered to the Immigration Department and raised a torture claim on the basis that if he returned to the Philippines he would be harmed or killed by members of a local gang for leaving the gang, and after his torture claim was rejected, he then sought non-refoulement protection on the same basis.  

2.The Applicant was born and raised in San Jose, Alvarez Cavite, the Philippines. After his parents’ death he was raised by his uncle who was a member of a local gang, and after leaving school the Applicant also joined the gang participating in their illegal activities.

3.However, after his uncle was killed by one of the gang members in 2007 over some dispute, the Applicant decided to leave the gang in mid-2009 by fleeing to Laguna, but when he heard that the gang had sent members to look for him so as to kill him for leaving the gang without permission, he then fled to Manila where he stayed for more than one year without incidents, but as he still felt it was not safe to remain in the Philippines, he therefore departed on 15 September 2011 for Hong Kong where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Supplementary Claim Form on 18 May 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

4.By a Notice of Decision dated 22 June 2018 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture 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 the local gang upon his return to as low due to the low intensity and frequency of past ill-treatment from them, 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 Manila where it would be difficult if not impossible for those members of the local gang to locate him.

6.On 4 July 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 15 January 2019 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 29 April 2019 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 of his claim vague, incoherent and inconsistent that it was not the testimony of a person describing lived experience that it was clearly a simple invention of the Applicant, and concluded that none of the claims made by him can be given any credence whatsoever that his claim for non-refoulement protection failed on all applicable grounds.

8.On 7 May 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1)  Procedural unfairness in that the Board had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirements;

(2)  Procedural unfairness in that the Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(3)  Procedural unfairness in that the Board’s decision to refuse the Applicant’s appeal was unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(4)  Procedural unfairness in the Board’s failure to meet the greater care and duty owed to a self-represented claimant;

(5)  That the Applicant was not given an opportunity to put forward his submissions in an oral hearing nor was he invited to do so; and

(6)  That the Board had significantly relied on the source of news not officially recognized or were simply hearsay or outdated resulted in making groundless speculations that it would be safe for him to return to his country of origin.  

9.These are however all just broad and vague assertions of the Applicant containing several 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 Board unlawfully fetter its discretion or act in a procedurally unfair manner or that its decision was unreasonable or irrational, or how was the Applicant not given any opportunity to put forward his submission when it was plain that he was able to give evidence and make his representation during his oral hearing before the Board with the assistance of an interpreter, or which COI relied on by the Board were unofficially recognized or hearsay or outdated. 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.In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 26 – 36 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 irrationality 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.

12.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.     

13.In the circumstances 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.

14.Furthermore, the Applicant on 10 November 2020 filed an affidavit stating that he wants to “cancel” all his case because he has decided to go back to his home country. As such and for all the reasons given, and as I am not satisfied that there is any prospect of success in his intended application for judicial review, I accordingly dismiss his leave application.

Dated the 16^th day of February 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