Cortez Jaime Sandiego v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 512/2019

[2021] HKCFI 3428

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 512 of 2019

____________________

____________________

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 28 January 2019 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 citizen of the Philippines. He came to Hong Kong as a visitor on 20 March 2015 but overstayed since 4 April 2015.  On 6 May 2015, he surrendered to the Immigration Department.  On 20 July 2015, he lodged a non-refoulement claim.  

5.He claimed that if refouled, he would be harmed or killed by Ramil Torres (“RT”), a member of a syndicate, for ceasing to deliver drug for him.  The applicant confirmed before the Director that he and his family did not have any political affiliations and were never wrongly treated by the authorities.  His only source of fear was from RT.  Since October 2014, the applicant had been delivering goods for RT.  He was not aware of the contents of the goods.  In early 2015, when the applicant realized that the goods RT asked him to deliver were drugs, he started to avoid contact with RT.  Thereafter, RT started threatening him via phone.  When he fled to other cities, he heard that RT came to look for him.  Out of fear, he fled to Hong Kong for protection.  Details of his story are set out in paragraph 6 of the Director’s Decision described below and paragraphs 9-20 of the Board’s Decision.

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 17 May 2018 (“the Director’s Decision”), the Director refused his claim for the reasons that his claimed risk of being harmed or killed by RT was assessed to be low [10]-[15]; that state protection was available to him [16]-[21] and that internal relocation was an option open to him [22]-[27].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. He appeared before the Board on 14 December 2018 and answered the Board’s inquiries with the assistance of an interpreter. 

9.The Board cast serious doubts as to the applicant’s claim because his evidence was evasive, inconsistent and confusing.  The Board refused to accept that he was hired by RT to deliver the drugs and the applicant only presented himself to be a tricycle driver so as to fabricate his claim [32].  The Board also found that there was no real risk of harm if the applicant was refouled to Philippines as, even on the applicant’s own evidence, it was not established that RT had ever intended to harm or kill him [33]-[37].  In these circumstances, the Board rejected the applicant’s claim on all applicable grounds and dismissed his appeal [38]-[57].  

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 22 February 2019 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, he has attached his written submissions. He has 3 reasons of complaint. The first is no hearing by the Board, contrary to high standard of fairness as decided by the Court of Final Appeal. The second reason is procedural fairness in the decision-making process. The third reason is that the Board had not taken into account that the applicant was not legally represented and he had insufficient knowledge and it had not advised him that he can appeal against its decision.

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 grounds in support of this application do not assist his application. According to the Board’s Decision, he appeared before the adjudicator and had answered her questions. The Board was obviously aware that he was not legally represented. It should have taken this factor into consideration when it considered his appeal. As to notice to him of appeal, the Board has no statutory duty of giving the notice. His remedy is not by way of appeal, but by way of judicial review of the Board’s Decision. He has done it within time.

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 to show 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 30^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