Celestial Valentin Guisinga v. Torture Claims Appeal Board

HCAL 386/2019

[2022] HKCFI 1165

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 386 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 38-year-old national of the Philippines who arrived in Hong Kong on 13 January 2016 as a visitor with permission to remain up to 27 January 2016 when he did not depart and instead overstayed, and on 16 February 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 people who held grudges against him over past disputes in his home district. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Koronadal City, South Cotabato, the Philippines. After leaving school he worked as a helper in the household of the governor of South Cotabato, and later as the governor’s messenger and body guard.

3.Over the years he had carried out dirty jobs for the governor against various people in his home district such as burning down houses, taking away properties, and making threats and carrying out beatings for the governor, but eventually the victims and their families started to file court cases against the Applicant that he was advised by the governor to lay low and to go into hiding, but when he started to receive death threats, the Applicant moved out of his home district to other places. 

4.In 2016 the Applicant decided that it was no longer safe for him to remain in the Philippines, and so he departed on 12 January 2016 for Hong Kong where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 29 May 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 9 July 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”).

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 his perceived enemies upon his return to the Philippines as low due to the absence of or low intensity and frequency of past ill-treatment from them, that they were private personal disputes between them 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 Manila where it would be difficult if not impossible for him to be located.

7.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 8 October 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 11 January 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board found inconsistencies, discrepancies and implausibility in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from those people trying to take revenge against him for leaving his home country for Hong Kong, and that in any event they were private personal disputes without any official involvement that state/police protection would be available to him upon his return to the Philippines as well as reasonable internal relocation for him to move safely to other areas away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

9.On 11 February 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affidavit of the same date he put forward the following grounds for his intended challenge:

(1) Procedural unfairness in that the Board had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirement;

(2) Procedural unfairness in that the Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(3) Procedural unfairness in that the Board’s decisions to refuse the Applicant’s appeal were unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(4) Procedural unfairness in the Board’s failure to meet the greater care and duty owed to a self-represented claimant;

(5) That the Board had significantly relied on source of news that is not officially recognized or is simply hearsay or outdated with the lack of credible source of information had resulted in it making groundless speculations that it is safe for the Applicant to return to his home country; and

(6) That the Applicant was not given an opportunity to put forward his submissions in the oral hearing or to submit written submissions or evidence or to reply to the submissions of the Director.  

10.These are however all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way did the Board unlawfully fettered its discretion or that the Adjudicator acted in a procedurally unfair manner or that the decision was unreasonable or irrational in the public law sense, or which COI relied on by the Board were not officially recognized or were hearsay or outdated, or how was he not given any opportunity to present his submissions when it was clearly recorded in the decision ([21] – [31]) that he was able to make proper presentation of his case during his appeal hearing before the Board and to answer questions raised of his claim without any problem or difficulty. As such and for the reasons given, I do not find any of these grounds of the Applicant reasonably arguable 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 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.

13.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.

14.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 22^nd 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