Pableo Melvin Bulado v. Torture Claims Appeal Board

HCAL 2843/2018

[2022] HKCFI 784

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2843 of 2018

BETWEEN

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 45-year-old national of the Philippines who arrived in Hong Kong on 1 December 2015 as a visitor with permission to remain up to 15 December 2015 when he did not depart and instead overstayed, and on 23 June 2016 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 certain drug dealers for reporting to the police about their illegal activities. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Subusub, Rosario, La Union, the Philippines. After leaving school he first worked as a farmer and then as a driver, got married and raised a family of 5 children in his home district.

3.One day in about September or October 2015 while he was driving through his home town, he saw some drug dealers carrying out certain drugs transaction at the back of a market, of which he later reported to the police, but several days later he noticed those drug dealers lurking outside his house, and as he feared that they were there looking to kill him, he therefore fled to Cabanatuan City to take shelter in his grandmother’s home, and on 1 December 2015 he departed the Philippines for Hong Kong where he overstayed and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 4 March 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

4.By a Notice of Decision dated 26 March 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”).

5.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 those drug dealers upon his return to the Philippines as low due to the low intensity and frequency of past ill-treatment from them, 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 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 Manila where it would be difficult if not impossible for those drug dealers to locate him.

6.On 6 April 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 21 June 2018 before the Board during which he gave evidence and answered questions raised on his claim by the Adjudicator for the Board. On 22 October 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

7.In its decision the Board accepted the Applicant’s evidence of having witnessed illegal activities conducted by those drug dealers in his home district and the events that followed thereafter including his report made to the police and his subsequent fear of revenge against him by those drug dealers that caused him to leave for Hong Kong, but found no evidence of any official involvement that state or police protection would be available to him if needed upon his return to the Philippines as well as reasonable internal relocation for him to move safely 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.  

8.On 11 December 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Director’s decision, but given the fact that it had since been superseded by his subsequent appeal to the Board and hence no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549, I shall therefore treat his application as one against the Board’s decision, but for which he did not put forth any ground for seeking relief in his Form or in his supporting affirmation of the same date in which he just stated that the decision was unreasonable and unfair without any details or particulars as to how it was so, 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.

9.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.

10.In the Applicant’s case, 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.     

11.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.

12.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 17^th day of March 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