Sumagang Jade Rivero v. Torture Claims Appeal Board

HCAL 2523/2018

[2021] HKCFI 3744

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2523 of 2018

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 the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 46-year-old national of the Philippines who arrived in Hong Kong on 7 July 2008 as a visitor with permission to remain up to 22 July 2008 when he did not depart and instead overstayed, and on 25 September 2008 he surrendered to the police, and after he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim on the basis that if he returned to the Philippines he would be harmed or killed by the mayor of his home district for broadcasting in the radio of the mayor’s illegal drugs dealings.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Ozamiz City, Misamis Occidental, the Philippines.  After leaving school he worked in various businesses in his home district, during which he had been told by his father that their mayor was one of the major drug lords in the city.

3.In 2006 his father passed away of cancer according to his medical report, but later the Applicant was informed by his paternal uncle that his father was in fact poisoned by people affiliated with the mayor, and so the Applicant went on the local radio to accuse the mayor of being involved in illegal drugs dealings in the city.

4.Shortly after the broadcast, the Applicant was warned by his uncle that his life was in danger as the mayor had sent his men looking for him, and so the Applicant fled to Manila, and on 10 August 2007 he departed the Philippines for China, Macau and Hong Kong, and on his last trip to Hong Kong on 7 July 2008, he overstayed and later surrendered to the police, and after he was referred to the Immigration Department for investigation, he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 12 January 2015 and attended screening interview before the Immigration Department with legal representation from Duty Lawyer Services (“DLS”).   

5.By a Notice of Decision dated 4 March 2015 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

6.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from the mayor upon his return to the Philippines as low due to the absence of or low intensity and frequency of past ill-treatment from him, that the alleged threats were entirely based on hearsays without any reliable evidence of any real threats or actions from the mayor or his men directed against the Applicant, that in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in the Philippines with a large population of 107 million people spread across a vast territory of more than 298,170 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of the Philippines away from his home district in large cities such as Manila where it would be difficult if not impossible for the mayor or his associates to locate him.

7.On 16 March 2015, the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, for which he however failed to attend the scheduled oral hearing without explanation, and then the Board proceeded to deal with his deal in his absence and on paper.  On 12 May 2017, his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision, the Board found on the material and information before it that the Applicant’s claimed threats from the mayor were solely based on hearsay information without any other reliable evidence or personal experience by the Applicant other than his own speculations, that he was unable to prove any evidence of the mayor’s involvement in the alleged drug dealings, that in any event the mayor’s power was restricted only within Ozamiz area, and that in the absence of any state involvement or of the government that state/police protection would be available to the Applicant upon his return to the Philippines as well as reasonable internal relocation for him to safely move to other areas away from his home district or the mayor’s jurisdiction that his claim for non-refoulement protection failed on all applicable grounds.  

9.Meanwhile on 2 May 2017 the Director on his own initiative invited the Applicant to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”), and in the absence of any response from him, the Director by a Notice of Further Decision dated 5 September 2017 rejected the Applicant’s BOR 2 Claim upon finding that he failed to establish a personal and real risk of his absolute and non-derogable rights under HKBOR including right to life under BOR 2 being violated upon his return to the Philippines.

10.On 28 March 2018 the Applicant again filed an appeal to the Board against the Director’s Further Decision, but on this occasion he was outside the 14-day period required by Section 37ZS(1) of the Immigration Ordinance to file his notice of appeal, and in pursuance of Section 37ZT(2) of the Ordinance, the Board proceeded to decide as a preliminary decision without a hearing whether to allow the late filing of his notice of appeal. 

11.By a written notice dated 16 August 2018, the Board refused to allow the late filing of the Applicant’s notice of appeal upon finding that his delay of more than 6 months inordinate, that his explanation that he needed time to find his proof of address and to prepare for the appeal was not acceptable, and that nothing in the factual basis of his original application for non-refoulement protection disclosed any special circumstances by reason of which that it would be unjust not to allow the late filing of his notice of appeal.

12.On 9 November 2018 the Applicant filed his Form 86 for leave to apply for judicial review of this decision of the Board, and in his supporting affirmation of the same date he merely repeated his claimed problems in the Philippines as before and stated that he does not agree with the Board’s decision but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application.  As such and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

13.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

14.In the Applicant’s case, the Board had earlier already properly and correctly rejected his claim under all the other applicable grounds including torture risk, BOR 3 risk and persecution risk for the thorough and detailed analysis and reasoning set out in paragraphs 17 – 38 of its earlier decision, and given the basis of his claim is even based on his own case and the limited threshold and scope of a BOR 2 claim, it is plain that the Applicant’s claim does not engage the BOR 2 ground, and in the absence of any error of law or procedural unfairness in the Board’s second decision being clearly and properly identified by the Applicant, I simply do not see any reasonably arguable basis to challenge the findings of the Board in either of its decisions.  

15.Furthermore, the fact is that it has been established by both the Director and the Board in their respective earlier decisions that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of the Philippines, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.  

16.In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

17.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.

Dated the 14^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