Castrillo Calveen Lacuarin v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 2772/2018

[2022] HKCFI 722

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2772 of 2018

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 Decisions dated 15 November 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not request a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), his application is 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 national of the Philippines.  He last entered Hong Kong as a visitor on 8 July 2015.  He did not depart when his limitation of stay expired and had overstayed.  On 10 November 2015, he surrendered to the Immigration Department.  On 15 December 2015, he got married in Hong Kong and his daughter was born on 29 December 2015.  Nevertheless, the applicant failed to report recognizance as required and had gone underground.  On 7 May 2018, he was arrested by the police. 

5.On 25 June 2018 and 27 June 2018 respectively, the applicant lodged a non-refoulement claim on the basis that, if refouled, he would be subject to extrajudicial killing by the Philippines authorities because he used to be a drug user and that he would be harmed or killed by his mother-in-law’s brother Billy.

6.According to the applicant, he became an occasional drug user in 1999 and subsequently developed into a frequent user due to the pressure originated from his divorce proceedings in 2015.  In 2016, it was publicly announced by the then president in the Philippines that every drug user would be killed. The applicant learnt about the killing of his cousin during the said drug war. In around March 2018, he received an email from Billy, threatening to kill him because of his drug issue.  Since all the information he learnt still pointed to the Philippine authorities’ extrajudicial killing against drug users, the applicant stayed in Hong Kong for protection.  Nevertheless, the applicant stated that his wife, who became a drug user under his influence, and his daughter had returned to the Philippines and lived with Billy.  Details of his claim were set out at paragraph 6 of the Director’s Decision and paragraphs 6 to 14 of the Board’s Decision as described below. 

The Director’s Decision

7.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”).

8.By a Notice of Decision dated 27 August 2018, the Director refused his claim (“the Director’s Decision”). The Director found that the level of risk of harm from Billy or the Philippines authorities upon the applicant’s refoulement was assessed to be low because (i) he was never inflicted with ill-treatments in the past from Billy or the relevant authorities due to his drug use [18]; (ii) the country of origin information (“COI”) showed that the said drug war was suspended in January 2017 [19]-[20]; (iii) state protection would be available to him [22]-[27] and (iv) internal relocation was an option open to him [28]-[30].

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board.  He attended the scheduled hearing on 30 October 2018, during which he further clarified his claim. 

10.The Board considered the applicant’s oral evidence to be contradictory with his evidence in the written statements and during screening interview.  It also noted that the applicant’s detention might already end his drug habit [22].  In assessing the individual grounds, the Board found that the applicant was neither harmed or ill-treated by the Philippines authorities nor by Billy. There were no injuries to attain a minimum level of severity.  Further, based on the COI, the people involved with drugs would be given time to surrender to the police and sign declarations purporting to stop all illegal activities [45].  Thus, if the applicant committed any drug-related offences, he would be sanctioned by the laws in Philippines or, otherwise, he would not face any danger if he stayed away from drug.  The Board also observed that, on the applicant’s evidence, his wife was also a drug dependent and lived safely in the Philippines.  Therefore, the applicant would have no problem following her wife’s rehabilitation upon return [50].  In any event, the COI showed that state protection and internal relocation were both available to the applicant [56]-[59].    

Application for leave to apply for judicial review

11.The applicant filed Form 86 on 5 December 2018 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmation in support of his application, he enclosed the hearing bundle but without stating specific grounds in support of his application.

DISCUSSION

13.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 applicants’ 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).

14.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

15.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.”

16.The applicant has not raised any valid ground to challenge the Board’s Decision.

17.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.

18.There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

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