Gajo Reynaldo Bernardino v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2222/2018

[2022] HKCFI 1172

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2222 of 2018

BETWEEN

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 11 September 2018 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.

The applicant

3.The applicant is a national of the Philippines.  He entered Hong Kong on 23 October 2017 as a visitor and was permitted to stay until 6 November 2017. He did not depart and had overstayed since 7 November 2017.  On 20 November 2017, he surrendered to the Immigration Department.  On 26 March 2018, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by the Philippine police.

4.According to the applicant, he had become a drug addict since 2015 under his friend’s influence.  In December 2015, he was asked by his cousin to pick up a parcel from someone.  In shock, the applicant found that the parcel contained four kilos of ice.  He confronted his cousin but was hit with a shotgun.  In September 2016, the applicant witnessed a police raid at his cousin’s house and overheard them saying that there was one person missing.  He believed that he was “the missing person” referred to by the police.  Feared that he would be arrested, the applicant escaped to Hong Kong for the first time in 2016.  Six months later, he returned to the Philippines but was asked to leave by his parents as the police were still looking for him.  He then fled to Hong Kong again in October 2017.  While he was in Hong Kong, his brother told him that some drug partners would harm or kill him for the information about the drug source.  Out of fear, the applicant stayed in Hong Kong for protection.  Details of his claim were set out at paragraph 6 of the Notice of Decision dated 31 May 2018 by the Director (the “Director’s Decision”) and paragraph 18 of the Board’s Decision as described below. 

The Director’s Decision

5.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 (“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”).

6.By way of the Director’s Decision, the Director refused the applicant’s claim. The Director refused to accept that he would face any real risk of harm upon refoulement because (i) his assertion that he would be arrested by the police was in doubt [12]-[13] and, if arrested, it was a legal consequence of his participation in the illegal activity [14]; (ii) Further, the country of origin information (“COI”) showed that, while the Philippine government had implemented a series of harsh policies in combating the drug, it also had modified the operations against the drug to ensure that they would not mistreat the arrestees if they did not resist who were also provided with fair trial [15]-[23]. 

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board.  The Board scheduled an oral hearing on 27 August 2018 for his appeal, during which the applicant gave evidence. 

8.The Board considered the applicant’s evidence.  It found that the material aspects of his claim were either inherently contradictory or deviated from logics.  For example, the applicant provided inconsistent accounts as to his reason of escaping to Hong Kong.  His assertions about picking up the ice and about hearing the police shouting inside his cousin’s house were illogical [22(i)]-[22(iv)].  His conduct in traveling in and out of the Philippines was inconsistent with his claim of being a wanted person by the police [22(v)]-[22(vi)]. 

9.Further, the Board found that the COI showed that the Philippines had been implementing measures to ensure the fair treatment for the arrestees in the drug war and thus state protection was available to the applicant [25]-[28].  Insofar as his fear against his cousin was concerned, the Board found that their dispute was private without state involvement [45].  In any event, his cousin was said to have been killed in the drug war and he could safely return to his home village or other cities without trouble [46]-[49]. 

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

Application for leave to apply for judicial review

11.The applicant filed Form 86 on 12 October 2018 for leave to apply for judicial review of the Board’s Decision.

12.In his affidavit in support of his application, he did not specify any ground 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 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 for the applicant apply for judicial review.  Accordingly, I dismiss his application.

Dated the 29^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