Robillos Adolfo De La Cruz v. Torture Claims Appeal Board

HCAL 163/2019

[2021] HKCFI 3897

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 163 of 2019

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 Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 43-year old national of the Philippines who arrived in Hong Kong on 18 August 2017 as a visitor with permission to remain up to 1 September 2017 when he did not depart and instead overstayed, and on 4 September 2017 he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to the Philippines he would be harmed or killed by a local police officer and/or his fellow policemen over a car parking dispute between the two of them in his home district. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Aliaga, Bambang Nueva Vizcaya, the Philippines.  After leaving school he got married and raised a family with a child by running his trucking services business in his home district.   

3.One evening on 16 November 2016, while parking his vehicle in the parking lot of the housing estate where he lived, the Applicant had a heated argument with another driver over the same parking space when that man identified himself to be a local police officer DF and took him to the town hall where DF lodged a complaint against him to the village head.

4.About a week after the incident the Applicant was required by the local police to attend a rehabilitation briefing at the station for drugs offenders, and after the session he was told to return for further sessions the following week.

5.Upon returning home the Applicant suspected that the briefing was part of an attempt by DF to take revenge against him by implicating him in matters involving drug offences in order to create an excuse to shoot to kill him as some drug offender, and so he became fearful for his life and fled to other towns in Pangasinan and Nueva Vizcaya, and on 1 June 2017 he departed the Philippines and eventually made his way to Hong Kong where he overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 23 April 2018 and attended screening interview before the Immigration Department with legal representation.                

6.By a Notice of Decision dated 24 May 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of 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”).

7.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 DF or the local police upon his return to the Philippines as low due to the absence of any past ill-treatment from them, that there was no evidence of any police interest in him given the fact that he had never been arrested and was able to leave the country without any problem, that his dispute with DF was a trivial private personal matter without 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 104 million people spread across a vast territory of more than 300,000 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 Cebu City where it would be difficult if not impossible for DF to locate him.

8.On 4 June 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, for which he attended an oral hearing on 28 August 2018 before the Board during which he gave oral evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 7 January 2019, his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board accepted the Applicant’s claim of a dispute with DF over a car parking incident and as a result DF had made certain attempts to try to take revenge against him, but found no evidence of any police or official involvement to suggest any possible risk of harm from the police or of any further attempts by DF against him since he left the country without any problem that it doubted that there would still be any adverse interest in him after all these years that it did not accept that the Applicant would face any genuine or substantial risk of being harmed upon his return to the Philippines, and that in any event in the absence of any official involvement that state/police protection would be available to him as well as reasonable internal relocation for him to safely move to other area away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds. 

10.On 17 January 2019, the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely stated that he rejects the decision as it disregarded his dangerous situation in his home country but without providing any particulars or elaborations as to how it did so, nor did he put forth any other proper ground for his intended challenge or 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.

11.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.

12.In the Applicant’s case, the Board did not take issue with his claim of fear of harm from a local policeman over a car parking dispute but found no evidence or reasonably arguable basis that he would face any real risk of harm from anyone upon his return to his home country for the very thorough and detailed analysis and reasoning set out in paragraphs 61 – 94 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law 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 to challenge the finding of the Board.  

13.The fact is that it has been established by both the Director and the Board in their respective 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.                

14.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.

15.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 31^st 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