Alaman Jerome Villa v. Torture Claims Appeal Board /Non-refoulement Claims Petition Office

HCAL 475/2019

[2022] HKCFI 139

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 475 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 the Applicant in open court;

Order by Deputy High Court Judge P. Li:

1.      The Notice of application for leave to apply for Judicial Review be amended to include the Torture Claims Appeal Board’s decisions dated 8 December 2016 and 14 February 2019;

2.      Leave to apply for Judicial Review be refused.

Observations for the Applicant:

1.The applicant left the Philippines for Macau on 9/8/2009.  He entered Hong Kong on 18/8/2009.  He left on 31/8/2009.  He came to Hong Kong from China on 1/10/2009.  He was allowed to stay until 15/10/2009.  He overstayed until he was arrested by the police on 30/10/2009.  He raised the non-refoulement claim in this case on 1/11/2009.

Background

2.The applicant was born in Claveria of the Philippines on 5/12/1980.  He received education for 6 years.  He last worked at a hotdog factory for about 6 months until May 2000.  He had no affiliation with any political parties.  His parents and elder brother were in the Philippines.

3.The applicant claimed that if he returned to the Philippines, he would be killed by the members of a drug syndicate.

4.One day in October 2006, at about 11 a.m., some officers rushed into his home.  They arrested his elder brother.  His elder brother was charged with drug trafficking and detained until October 2011.  He had lost contact with his elder brother since.

5.About a week later, 4 members of the drug syndicate came to his home.  They accused him of disclosing their identities to the police.  They threatened to kill him if he assisted the police.  He was scared. A month later, he left home for Manila.

6.Around late December 2006 in Manila, he was arrested in connection with an illegal agency which recruited workers to Cyprus.  He was not convicted of any charge but was detained for 6 months. He went home after his release.

7.In early 2008, his neighbors told him that 2 men on motorcycles came and asked about him.  It seemed that they carried guns.  He believed that they were from the drug syndicate.  He did not report to the police.

8.He was scared.  Eventually he left the Philippines to work in Qatar in March 2008.  He returned to the Philippines in March 2009.  His neighbors told him that the people from the drug syndicate came looking for him again.  However, he had never encountered those people nor was he harmed by any of them.

9.He went to Macau on 9/8/2009.  He travelled from Macau to China and eventually came to Hong Kong on 18/8/2009.  He left Hong Kong on 31/8/2009 and returned on 1/10/2009.  He did not feel safe to return to the Philippines.  He could not relocate to Manila as some members of the drug syndicate were still at large.

The Decision of the Director

10.The Director of Immigration dismissed his claims on 30/1/2015.  The Director found that there was low risk of harm.   The reasons were as follows:

(a)   After the asserted incident in 2006 when 4 members of the drug syndicate rushed to his home, the applicant had never encountered anyone from the syndicate again. He was not attacked by them.  This was the situation until he left the Philippines for Macau in August 2009;

(b)  The people from the drug syndicate had never tried other means to locate him. There was no evidence that they tried to confront him.  There was no intention to kill him nor to attack him.

(c)  The police had arrested his elder brother for drug trafficking.  His brother was a member of the drug syndicate.  It was obvious that the police were not condoning the conduct of the syndicate.  In any event, he did not report to the police about the conduct of the syndicate.

(d)  According to some COI, there were problems of corruption and human rights abuses in the police.  On the other hand, there was positive steps taken to improve training and efficiency of the police.  The CHR [1]also provide training on human rights.  The Ombudsman office had been active in investigating human rights abuses and corruption cases.  There were news reports that the PDEA[2] had taken action against police officers involved in drug trades.  There was reasonable State protection in the Philippines.

(e)  The constitution of the Philippines provided for freedom of movement.  The population was 92 million. He had worked in Qatar for a year.  It was not unduly harsh for him to relocate to Manila.  Given the large population, it would be difficult for syndicate members to locate him.

11.The Director dismissed his claim on BOR 3, torture risk and persecution risk on 30/1/2015.  The Director also dismissed his claim on BOR2 risk on 29/3/2017.

The Decision of the TCAB

12.The applicant attended a hearing on 19/10/2015. He elected not to give evidence. The TCAB dismissed the appeal on 8/12/2016. The reasons were as follows:

(a)  The applicant had not raise any claim in Macau or China.  He did not raise any claim when first entered Hong Kong on 18/8/2009.  He only raised the present claim after he was arrested for overstaying on 1/11/2009.  This was inconsistent with his fear for his life.

(b)  Persecution risk

(i)    The applicant had sustained no serious injuries to a minimum level of severity.  There was no harm or violation of human rights against him.

(ii)   The COI revealed that there was improvement in the Philippines.  There was reasonable State protection.  It was not unduly harsh for him to relocate given his work experience.

(iii)  There was no well-founded fear of persecution.

(c)  BOR 3

(i)    There was no injury amounting to a minimum level of severity.  He was not subject to any genuine and substantial risk of ill-treatment.

(ii)   There was reasonable State protection.  He could relocate to other cities.  This ground failed.

(d)  Torture risk

(i)    There was no involvement of any state actor. He was not targeted by the government.

(ii)   There was no assault. The applicant did not suffer any severe pain or suffering which amounted to torture as defined by s.37 U of the Immigration Ordinance.

(iii)  There was reasonable State protection. There were reasonable relocation options. This ground failed.

13.The TCAB also dismissed his appeal in relation to BOR 2 ground on 14/2/2019.  The TCAB did not accept the applicant’s explanation for late filing of the notice of appeal.  He was nearly 5 weeks out of time.  He must bear the consequence of supplying an incomplete address to the Director.[3]  The adjudicator had considered the further information submitted by the applicant.  He held that it was just a repeat of his initial case. There was no merit in the intended appeal.

Judicial Review

14.The applicant filed the leave application on 19/2/2019.  He sought leave to judicial review the TCAB decision dated 15/1/2019.  According to our record, there was no such decision.  The two TCAB decisions were dated 8/12/2016 and 14/2/2019 respectively.  In his affidavit, he did not specify the errors in the TCAB decisions.

15.Although the date of the decisions he intended to seek leave for judicial review was inaccurate, I take it that he must have in mind the two TCAB decisions dated 8/12/2016 and 14/2/2019. I accept that his claim was finally determined as of 14/2/2019.[4]

16.The applicant attended a hearing before this court on 1/11/2021.  He had no update in his claim.  He again did not want to explain why he only filed his claim after his arrest on 1/11/2009.

17.In judicial review, the finding of facts is the duty of the TCAB.  In general, this court would not interfere.  This court is to decide whether there is any error in law and procedure.  Whether the decision of the TCAB is irrational. 

18.The applicant had delayed the claim until after his arrest for overstaying.  There was no explanation whatsoever.  This substantially damage the credibility of his claim.  The adjudicator was right to refuse his late filing of the notice of appeal in relation to the BOR 2 decision of the Director.  I agree with the reasons summarised in paragraphs 12-13 above.  They fully support the TCAB decisions.

19.I am satisfied that there is no error of law nor is there any procedural irregularity.  It is rational.

Conclusion

20.The Applicant’s claim is not reasonably arguable.  There is no realistic prospect of success.  I refuse leave for judicial review.

Dated the 18^th day of January 2022.

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