Tacio Miguel Pelin v. Torture Claims Appeal Board

HCAL 343/2019

[2022] HKCFI 1007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 343 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 / 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 58-year-old national of the Philippines who arrived in Hong Kong on 6 December 2008 as a visitor with permission to remain up to 20 December 2008 when he did not depart and instead overstayed, and was arrested by police almost 2 years later on 17 November 2010. After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to the Philippines he would be harmed or killed by the militant organization Cordillera People’s Liberation Army (“CPLA”) for quitting the organization, and after his torture claim was rejected, he then sought non-refoulement protection on the same basis. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Bangao, Bokod, Benguet, the Philippines. After leaving school he worked as a farmer in his home district.

3.In 2000 through a friend’s introduction the Applicant joined CPLA in their fight for self-determination of the people in the Cordillera region of the Philippines being mainly responsible for stationing in the region and supplying food for the involved villagers.

4.After working for the organization for 8 years, the Applicant in 2008 decided to leave by seeking permission to return to his home village for visiting his ill father, but when he later did not return to the organization, he heard that some CPLA members had come to his village looking for him. Fearing that they were there to kill him for quitting the organization without prior approval, the Applicant therefore fled from his home village to take shelter in his uncle’s place in Kasibu, Nueva Vizcaya, and in December 2008 he departed the Philippines for Hong Kong where he subsequently overstayed, and after his arrest by the police, he then sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 29 December 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

5.By a Notice of Decision dated 24 April 2015 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then remaining applicable grounds other than torture risk including 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 CPLA people upon his return to the Philippines as low due to the absence of any past ill-treatment from them, that other than hearsay information and his own speculation there is no reliable evidence that the CPLA people were in fact looking for the Applicant or with any intention to harm or kill him, that in any event after all these years since he had left the country that it is doubtful that CPLA or its people would still have any interest in 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 CPLA in 2011 had reached an agreement with the Government of the Philippines to cease all their military operations and to be integrated into the government that it is not accepted that they would take any action against ex-members like the Applicant, and that with reasonable internal relocation available in the Philippines with a large population of 107 million people spread across a vast territory of more than 300,000 square kilometers that if the Applicant still fears of the CPLA people that it would not be unduly harsh for him as an able-bodied adult with working experience to move to other area away from his home district or the Cordillera region in large cities such as Manila where it would be difficult if not impossible for him to be located.

7.On 17 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 14 June 2017 also rejected the Applicant’s BOR 2 Claim upon finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR including right to life under BOR 2 being violated upon his return to the Philippines.

8.By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“Board”) against the earlier decision of the Director, the notice of appeal which was filed on 5 May 2015, and for which he attended an oral hearing on 26 September 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 30 January 2019 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.In its decision the Board accepted the Applicant’s claim of his past involvement in CPLA and his fear of ramification or retaliation form their people for quitting the organization, but found no evidence of any such attempt or intention of CPLA against him prior to his departure, and that in any event based on reliable COI that CPLA had since entered into an agreement with the Government of the Philippines in 2011 to have since ceased all their militant operations and reintegrated into the government that the Board concluded that the Applicant would not be at risk of any harm from the CPLA or anyone else or that there is any real risk that he would face any of the proscribed forms of harm upon his return to the Philippines that his claim for non-refoulement protection failed on all applicable grounds.       

10.On 8 February 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 or his supporting affidavit, 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.

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 rejected his claim essentially on its factual findings based on reliable COI that his claimed harm no longer factually exists for the thorough and detailed analysis and reasoning set out in paragraphs 50 – 78 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim as well as on the basis of relevant and unchallenged COI, 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 findings of the Board.  

13.Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim if still exists is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of the Philippines away from the Cordillera region, a decision also confirmed by the Board, 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 8^th day of April 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