Bravo Roldan Guisinga v. Torture Claims Appeal Board / Non Refoulement Claims Petiton Office

HCAL 268/2019

[2021] HKCFI 3212

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 268 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 Suffiad:

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 decisions of the Torture Claims Appeal Board (‘the Board) and the Director of Immigration (‘the Director”) refusing the Applicant’s claim for non-refoulement protection.

2.The Applicant, a national of the Philippines, came to Hong Kong in January 2016 as a visitor. Having overstayed, he surrendered to the Immigration Department in February 2016 and released on recognizance the same day. He lodged a non-refoulement claim with the Immigration Department on 11 April 2017.

3.The Applicant’s claim for non-refoulement was heard by the Director and on 26 January 2018, at which hearing the Applicant was legally represented. The Director rejected the Applicant’s non-refoulement claim. The Applicant then appealed to the Board.

4.The hearing before the Board took place on 12 July 2018. The Applicant appeared in person before the Board. By its decision dated 16 November 2018, the Board rejected the Applicant’s appeal and affirmed the decision of the Director.

5.This is the application by the Applicant for leave for judicial review against the decision of the Board.

The Applicant’s case

6.It is the Applicant’s case that in 2010 he had joined the New People’s Army (NPA) in Philippines as an ordinary member. The NPA is the armed wing of the Communist Party of the Philippines. The Applicant trained as a soldier with the NPA for some 3 months. After one year with the NPA, the Applicant left the NPA in 2011 because he did not like their laws, rules and regulations. As result, the Applicant had to hide from the NPA. It is alleged by the Applicant that his leaving the NPA amounted to a ‘betrayal’ and it is the NPA’s policy to kill or persecute ‘betrayers’ like him. It is alleged by the Applicant that 3 of his allies had been killed by the NPA.

7.Eventually the Applicant decided to go back to his home town in Koronadal, South Cotabato in the Philippines where his family was staying, but he still kept hiding from the NPA. The Applicant further says that for reasons unknown to him the NPA did not come to his home town to look for him.

8.In 2016, the Applicant applied to come to Hong Kong on the strength of his passport and had no problem leaving the Philippines to come to Hong Kong.

The Director’s findings/decision

9.The Director found that the ill treatment claimed by the Applicant was small and that no severe pain or suffering was inflicted upon the Applicant by the NPA.  The Applicant and his family had never been wanted, charged, interrogated, detained or imprisoned in the Philippines and the Applicant was free to depart the Philippines without problem when he came to Hong Kong in 2016.

10.The Director further found that the NPA, being an anti-government organization in the Philippines, there was nothing in the evidence to show that any government or state official who was/were in authority to be involved with the NPA

11.The Applicant could have, but never did sought police or state protection or help. The Country of Origin Information (COI) showed that the Philippine government, if told, would have been sympathetic to the alleged plight of the Applicant and would have helped or protected the Applicant.

12.For the above reasons, the Applicant’s non-refoulement claim was rejected.

The Board’s findings/decision

13.The Applicant’s claim for non-refoulement protection was assessed on all the applicable grounds including:

(i)  risk of torture as defined in Part VII C of the Immigration Ordinance (the Ordinance) (“torture risk”);

(ii)  risk of torture or cruel, inhumane or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“BOR 3 risk”)

(iii)  risk of violation of right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“BOR 2 risk”); and

(iv)  risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“RC”) (“persecution risk”).

14.The Board found that the reasons given by the Applicant for leaving the NPA were inconsistent and contradictory and and that there was no reliable evidence to show that the Applicant had joined the NPA in 2010. In this respect the Board found the evidence of the Applicant to be incredible and unreliable.

15.The Board accepted the evidence of the Applicant that he returned to his home town in 2011 after leaving the NPA and found that between 2011 and 2016 the Applicant was unharmed or untouched by the NPA. The Board thus found that the fear of the Applicant was more speculative than real and that there was no evidence to show that the Applicant would be at risk of being harmed by the NPA.

16.The Board found that the Applicant had operated a Facebook account which the Board found to be inconsistent with his running or hiding from the NPA.

17.The Board found no evidence of any connection between the NPA with any police, public officials or persons with government or state authority in the Philippines and there was nothing to show any involvement by government or state authority with the claimed ill treatment of the Applicant.

18.The Board further found no reliable evidence of the Applicant having complained to the police or state authority in the Philippines or sought help from them.

19.The Board found no reliable evidence of any physical or mental suffering of the Applicant or that he had been medically treated. There was therefore no reliable evidence that the Applicant had been “tortured” in the way as defined in section 37U of the Ordinance.

20.There was no reliable evidence of the involvement of the Philippine government in this matter and no reliable evidence to show that the Philippine government was unwilling or unable to provide protection to the Applicant or to help him for a RC reason.

21.The Board therefore found that there was no reliable evidence showing the Applicant had a well founded fear of persecution.

22.The Board found that the Applicant had failed to show that BOR 3 risk is real and personal and has failed to provide evidence to establish a case under BOR 2 risk. In short, the Board concluded that the Applicant was unable to show that he faced a real risk of danger to his life if refouled.

23.Internal relocation was not considered by the Board since the Applicant had failed to establish a real risk of persecution if refouled.

Application for leave to apply for judicial review

24.The Applicant filed a Form 86 on 10 January 2019 for leave to apply for judicial review of the decision of the Director and the Board. He did not request an oral hearing and the application was therefore considered on the papers.

25.In the Form 86, the Applicant did not set out any grounds for judicial review but only reiterated that his life is still in danger in the Philippines.

26.By a further handwritten letter sent by the Applicant to the High Court, he stated that he further requested the court to re-consider his case and his safety as he will face hardship going back to the Philippines.

Discussion

27.The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524. In particular, the role of the Court in an application for 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.

28.When the Applicant pursued his appeal to the Board, the decision of the  Director was superceded by the  decision of the Board and therefore no longer susceptible to judicial review: see Re Moshsin Ali [2018] HKCA 549. Therefore, while the Court examines the decision of the Director and that of the Board, it is unnecessary to delve into the decision of the Director.   The Observation for the Applicant will only focus on the decision of the Board.

29.In this case, the Board in fact rejected the Applicant’s appeal on the ground that the Board disbelieved the Applicant’s claim and his true reasons for leaving his country. On the factual findings, there cannot be any basis for the Applicant’s claimed or alleged fear.

30.The assessment of evidence and risk of harm are primarily within the province of the Board and the Director. The Court will not interfere with the decisions unless there are errors of law, procedural unfairness or irrationality.

31.No such grounds have been put forward by the Applicant in this application for leave for judicial review.

32.Having examined the decision of the Board, the Court can find nothing to suggest that the Board has erred in any way in coming to the findings that it did. Nor is there any failure on the part of both the Director and the Board to apply high standards of fairness.

33.There are no errors of law, procedural unfairness or irrationality in the decision of the Board.

34.The mere re-iterating by the Applicant of his factual case (which has been rejected by the Board and by the Director), is not sufficient for leave to be granted to the Applicant for judicial review.

35.For the reasons given, there are no realistic prospect of success in the Applicant’s intended application. The Court therefore refused to grant leave to apply for judicial review.

Dated the 4^th day of November 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