Balles Jeffrey Galindo v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 919/2019

[2022] HKCFI 1118

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 919 of 2019

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 Decision dated 8 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”).

2.The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with his application 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 had been working as a foreign domestic helper in Hong Kong since 2000.  After he finished his employment contract, he entered Hong Kong as a visitor on 27 December 2015 and was permitted to stay until 10 January 2016.  He did not depart and had overstayed.  On 18 December 2016, he was arrested by the police.  On 20 December 2016, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by Dionisio Geronella (“DG”).

5.According to the applicant, he worked for DG in 1999.  DG was rich and influential.  In June 1999, the applicant witnessed a murder performed by DG and his followers against someone who they accused of stealing a goat.  One of DG’s followers noticed that the applicant was also present at the scene. Feared and believed that DG would kill him, the applicant escaped to hide in different places before eventually fleeing to Hong Kong for protection. Details of his claim are set out in paragraph 6 of the Notice of Decision dated 7 March 2018 by the Director (the “Director’s Decision”) and paragraphs 27 to 32 of the Board’s Decision described below.   

The Director’s Decision

6.The Director considered the applicant’s claim in relation to the following risks:

(1)   risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(2)   risk of violation of the right of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”) (“BOR 2 risk”);

(3)   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

(4)   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”).

7.By way of the Director’s Decision, the Director refused his claim.  The Director found that the level of risk of harm upon the applicant’s refoulement was assessed to be low because (i) the absence of past ill-treatments from DG indicated an unlikelihood of future risk of harm [11]-[12]; (ii) state protection would be available to him [13]-[14]; and (iii) internal relocation was a viable alternative [15]-[18]. 

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  Before the Board, the applicant added that he would be killed following President Duterte’s mandate against drug addicts as DG’s son was a police officer and threatened to kill the applicant and blame the murder on the drug war [38].

9.Having considered the applicant’s evidence, the Board found that the applicant’s claim was not substantiated.  In particular, the Board noticed that the applicant was evasive as to how many times he returned to the Philippines after 2000 [43]; that his evidence on DG was inconsistent with the country of origin information and inherently contradictory [46]-[51]; and that he could hardly recall the details of the murder at the hearing despite he could remember them in his non-refoulement claim form [52].  On the basis of these findings, the Board refused to accept that the applicant witnessed a murder [55] or that he would be killed in the drug war [60].  In any event, the Board found that he could relocate safely to other cities of the Philippines [62]-[65]. 

10.For the aforesaid reasons, the Board rejected his claim and dismissed his appeal. 

Application for leave to apply for judicial review

11.The applicant filed Form 86 on 3 April 2019 for leave to apply for judicial review of the Board’s Decision.

12.In his affidavit in support of his application, he exhibited the Board’s Decision without setting out any specific ground.

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 applicant’s 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 judicial review.  Accordingly, I dismiss his application.

Dated the 25^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