Waklin Graciam Doping v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 1306/2018

[2021] HKCFI 731

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1306 of 2018

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 documents and Applicant being absent in open court;

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 29 June 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with his application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (the “Director”) is the interested party.

The applicant

4.The applicant is a Filipino national. He came to Hong Kong on 11 August 2013 as a visitor. He overstayed and was arrested by police on 9 January 2014. He lodged his non-refoulement claim with the Immigration Department by written representations respectively dated 12 January 2014, 23 January 2014 and 7 May 2014.

5.He claimed that if refouled, he would be harmed or killed by his family or by Malik Khan’s family because he had disclosed his homosexuality orientation to his family and rejected the marriage proposal with Malik Khan’s daughter. His father and Malik Khan were business partners. Malik Khan is a Muslim. His father converted from Christianity to Muslim. His father proposed a marriage between him and Malik Khan’s daughter. He rejected and disclosed his homosexuality orientation to his father. His father was furious and refused to talk to him. On the other hand, Malik’s son had threatened him that if he did not marry his sister, he would be killed. Details of the incidents are set out in paragraph 9 of the Director’s Decision described below.

The Director’s Decision

6.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”).

7.By Notice of Decision dated 11 October 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated. The Director found that the level of risk of harm from his family or Malik’s family upon his return to the Philippines was assessed to be low [14]; that state protection was available to him [16] and internal relocation was an option open to him [17].

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision and attended the hearing before the Board on 22 February 2018.

9.By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision for the reasons as set out below.

(1)  The applicant’s evidence was unreliable and the Board did not accept that his father had a partnership with a Muslim named Malik Khan, any pre-arranged marriage with Malik’s daughter or any threat from Malik’s family. [47 & 48]

(2)  The Board did not accept that he faced a real chance of real risk of any of the proscribed harms because of his sexuality. [54]

(3)  The Board did not accept that the applicant faced a real chance or real risk of any form of harm upon his return to the Philippines. [55]

(4)  For the above reasons, the Board rejected the applicant’s claim on Torture risk [58], BOR 3 risk [59], BOR 2 risk [60] and Persecution risk [61].

Application for leave to apply for judicial review

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

11.In his affirmations in support of his application, he said that he believed that the Board had misjudged his case.

DISCUSSION

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

13.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13.… …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.”

14.His ground in support of this application is only his opinion without any evidence or specific in support of it. It does not assist his application.

15.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.

16.There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.

CONCLUSION

17.I therefore refuse to grant leave for the applicant to apply for his intended judicial review.  Accordingly, I dismiss his application.

Dated the 25^th day of March 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