Buniag Renante Lulu v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 2162/2018

[2021] HKCFI 3568

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2162 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 14 September 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”), the matter is dealt with 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 7 September 2017 but overstayed.  He surrendered to the Immigration Department on 10 October 2017 and lodged a non-refoulement claim on 19 April 2018.     

5.The applicant claimed that if refouled, he would be harmed or killed by his creditor Mrs. Espiritu due to a loan dispute and that his life would be in danger because he took part in drug trafficking in the Philippines.  According to the applicant, in September 2015, he borrowed money for his business.  He claimed that his creditor’s husband was a retired police officer who had many connections.  Since he defaulted the repayment, three unknown men beat him up in December 2015.  He also received verbal threats from the creditor.  In November 2016, the applicant risked to establish a drug trafficking business to repay the loan.  He was warned by the police.  Feared that he would be caught by the police, he fled to Hong Kong for protection.  Details of his story could be found at paragraph 6 of the Director’s Decision as 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 25 May 2018 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated. The Director found that there was no substantial ground for believing that there would be any real and substantial risk of him being harmed or killed upon his return to the Philippines [11]-[15]; that reasonable state protection was available to him [16]-[20] and that internal relocation was an option open to him [21]-[22].

The Board’s Decision

8.The applicant appealed against the Director’s Decision to the Board.  He attended the scheduled oral hearing on 24 August 2018, during which he requested the Board to give him some more time to obtain his business certificate.  The Board refused his request as he was unable to tell how likely he could get the documents and the time he could obtain the same.  The applicant indicated that he would not answer further questions from the Board.  The hearing was closed after the applicant was asked to read the printed copy of Wikipedia on the Oplan Tokhang and said he had no comment on it [6]-[7]. 

9.The Board relied on the documents submitted before it.  It did not find that the applicant had proved the primary facts of his claim.  It found that there was little evidence on his business [18]; that there were inconsistencies of how the loan arose and how the creditor went after him for repayment [19]-[22]; that his accounts on the drug trafficking business were vague and inconsistent [23]-[26].  Further, the Board held that, even the applicant’s evidence was to be accepted, he still failed to establish a non-refoulement claim as (1) the alleged injuries did not attain to the level of severity, (2) when he was able to repay the loan, there was no further violence and he could even secure additional loans.  This indicated that the creditor had no intention to kill him [27].  The Board also considered the country of origin information and found that state protection was available to the applicant [28]-[38].  Insofar as his drug dealing was concerned, the Board found that it had rejected to accept his version of event but, taking his claim to the highest, he was able to leave the country freely and escape the drug war [33].  Or he could have surrendered to the authorities and cooperate with them [37].  As a result, the Board rejected his claim on all applicable grounds [39]-[66].  In any event, internal relocation to Cebu was a viable option for the applicant [67]-[70].    

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 8 October 2018 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, he simply asked the Court to review the Board’s Decision.

DISCUSSION

12.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, CA. §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

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

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

“13(1) .… …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.”

15.He has submitted no valid ground to assist his application. However, the Board, adopting the Director’s Decision, dismissed his appeal on the grounds that his evidence had no credibility; that state protection was available to him and that internal relocation was an option open to him. The Court of Appeal in Re Masud MD [2021] HKCA 1449, 7 October 2021 ruled that where an applicant refused to give evidence or refuse to answer questions put to him by the Board, the Board should warn him that his case was bound to fail unless he continued to participate in the oral hearing, following the decision in Browne v Dunn (1894) 6 R 67 (HL) (28 Nov 1893). The Court of Appeal stated:

“32 One of such rules that may be of relevance is the rule in Browne v Dunn. The rule requires that if a cross-examiner intends to challenge a witness’s evidence on a particular point as being untruth, questions must be put to him to give him notice that his credibility on that evidence would be impeached. The essence of the rule is that where it is intended to suggest that a witness is not speaking the truth or is lying on a particular point, or if there is an intention to impeach the credibility of the evidence of the witness, this should be pointed out to him, so that he may have the opportunity of replying to, explaining or otherwise dealing with the aspect of the evidence, allegations or accusations to which his attention is drawn. If this is not done, the court would not know the explanations or information which the witness might have been able to provide if he had the opportunity to respond. It is not only a rule of professional practice and a rule of conduct to be observed by the cross-examiner, but is essential to fair play and fair dealing with witnesses. Allegations directed against documents produced by a witness are also covered by this rule.

33. There is also no need to put every minute detail of the case to the witness.  The question is whether the witness was given notice that some aspects of his evidence would not be accepted or his credibility in that regard would be impeached.”

16.The issue of assessment of the evidence in situation where an accused in a criminal case elected not to give evidence was discussed in the Court of Final Appeal in Li Defan and Fan Ying Chao v HKSAR (2002) 5 HKCFAR 320.  As the rule of evidence is more flexible in the trial of civil matters, the legal principles should also apply to civil matters such as this case.

17.The above is a criminal case tried by the District Court.  The defendants were charged with bribery offence.  Both of them had given video evidence at the ICAC.  They elected not to give evidence at the trial.  The trial judge drew adverse inference against their explanation in the video conference and convicted them of the charge.  Before the Court of Final Appeal, the issue was whether the judge erred in law in saying that he could more readily draw inferences against the accused because they had not given evidence.  One must bear in mind that for criminal matter, the burden is on the prosecution to prove its case.  The defendant has no burden of proof of his innocence.  In this matter, the burden is on the applicant to prove his case to the Board.

17.On the question whether the court can draw adverse inference against the accused who elected not to give evidence, Lord Hoffmann said:

“27. … It is only when the failure of the accused to give evidence is a circumstance which may bear upon the probative value of the evidence which has been given and which the jury is required to consider, that they may take it into account, and they may take it into account only for the purpose of evaluating that evidence. The fact that the accused's failure to give evidence may have this consequence is something which, no doubt, an accused should consider in determining whether to exercise the right to silence ... But it is not to deny the right; it is merely to recognize that the jury cannot, and cannot be required to, shut their eyes to the consequences of exercising the right.”

18.As to the proper approach for a judge alone trial, the Lord Hoffmann was of the opinion that a single judge might be in a better position to assess the evidence than a jury and a common sense approach should be adopted:

“31. It [is] my opinion it should equally be accepted that unless there are indications to the contrary, the judge is aware that the accused is not obliged to give evidence and that failure to give evidence is not an admission of guilt. If, therefore, the judge appears to have, or says he has, used the failure of the accused to give evidence as an element in the reasoning by which he arrived at a finding of guilt, the only question is whether on the particular facts of the case such reasoning was legitimate. As Lord Diplock remarked in Haw Tua Tau v Public Prosecutor [1982] AC 136, it is hard to say more than that this is a matter of common sense.”

19.In the hearing before the Board, the consequences of not answering questions from the Board or not giving evidence is quite apparent to the applicant.  The burden is on the applicant to convince the Board that he had a genuine case for non-refoulement.  His attendance is purely on the question of the facts he had alleged before the immigration officer.  The Board will ask him no other questions than on the issues of the fact he alleged.  The cross-examination of the Board may proceed further and deeper into the facts as explanations are given to it by the applicant.  If he fails to convince the Board on the facts of his case, his claim has no chance of success.

20.In the Re Masud MD case, it seems that the appeal stands and falls with the credibility of the applicant’s evidence.  In this case, the Board had considered state protection and internal relocation alternative, which the applicant has to overcome.  Otherwise, he has no realistic prospect of success in his intended judicial review.  He had failed to address the other issues as he chose not to give evidence himself.

21.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.

22.There is no evidence to show that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

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

Dated the 3^rd day of December 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