Rios Reiner Castillo v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1423/2021

[2021] HKCFI 3346

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1423 of 2021

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 15 October 2020 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”).

2.The applicant asked for a hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), a hearing was fixed before him.  However, he was absent on the hearing date.  The matter is therefore, 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 on 22 December 2016 and was permitted to stay until 5 January 2017.  He overstayed and surrendered to the Immigration Department on 6 January 2017.  On 20 November 2019, he lodged non-refoulement claim with the Immigration Department.  He is now being detained at Castle Peak Immigration Centre.

5.The applicant claimed that if refouled, he would be harmed or killed by his brother-in-law, Lester because he had had a land dispute with him.  His wife had received a piece of land from her mother.  Lester was angry and he asked the piece of land to be transferred to him.  The applicant refused and there was a fight between him and Lester.  He was injured on his back and on his right arm.  He was afraid and fled to Hong Kong.

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 20 January 2020 (“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 by Lester upon his return to the Philippines [12]; that reasonable state protection was available to him [23] and that internal relocation was an option open to him [27].

The Board’s Decision

8.The applicant appealed against the Director’s Decision to the Board.  The Board considered the decision of the Court of Appeal in relation to whether an oral hearing had to be conducted for the appeal.  It decided that an oral hearing would not be necessary for a fair disposal of his appeal.

9.The Board did not challenge the applicant’s credibility of his evidence.  It affirmed the Director’s Decision, holding that the applicant was not eligible for protection under the Torture risk, BOR 2 risk, BOR 3 risk and Persecution risk.  It dismissed his appeal. 

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 12 October 2021 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, he said that he was not satisfied with the Board’s Decision because it did not mention all his facts and evidence on his claim.

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.  The Board had set out a summary of the facts of his case as contained in the Director’s Decision.  He had not been able to specify what facts or evidence that the Board had failed to mention.

16.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.

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

CONCLUSION

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

Dated the 13^th 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