Alamo Michael Manuel v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 661/2019

[2022] HKCFI 1539

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 661 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 oral submissions by the Applicant 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 22 February 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Second Decision”), which deals with his claim on BOR2 risk as set out in paragraph 8 below.

2.The applicant asked for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), a hearing is fixed on 20 April 2022 and he attended the hearing.

The applicant

3.The applicant is a national of the Philippines. He came to Hong Kong as a visitor on 10 February 2009 and was permitted to stay, after extension, until 3 March 2009. He overstayed and was arrested on 21 May 2009. He lodged torture claim with Immigration Department on 21 September 2009, which was converted into unified screening mechanism on the applicable risks as set out in paragraph 8 below. The applicant claimed that, if refouled, he would be harmed or killed by two persons called Tisoy, a member of an underworld member and Buddy, the father of his late girlfriend as they are both conducting vendetta against him.

4.According to the applicant, between 2003 and 2009, the year he left for Hong Kong, he had worked for Tisoy together with his two friends Efren and Michael on illegal activities such as trafficking drugs, assaulting people, kidnapping people and murdering a target. He was somehow fed up with such crimes and in 2007, he told Tisoy that he wanted to quit. Tisoy said that he had known too much about him and if he quit, he would kill him. In 2008, his friend told him that Tisoy was looking for him.

5.Since 2001, he had developed relationship with a girl called Admil, whose father is Buddy dealing in illegal activities too. Buddy was not happy with the applicant as the applicant is a Christian. Buddy wanted the applicant to leave Admil. But Admil was unwilling to do so. She told her father that she had got a job and would move out. In fact, she lived with the applicant. She was pregnant with the applicant’s baby. However, in an incident within a shopping mall where the applicant was having a gun fight with another group of people, Admil was shot. She died at the hospital. It was by that time Buddy knew that Admil was all along with the applicant. Buddy was very angry and he vowed that he would kill the applicant.

6.In late 2008, early 2009, when the applicant was walking on the street in Manila, a lady came beside him and told him softly: “Brother, be careful. Allah is coming.”. She then left by a car. He felt something ominous was imminent. He was unable to settle down since then. His mother told him that people came to the house to look for him. They threw stones at their house and set fire on it. But they were not hurt. Out of caution, he left the Philippines for Hong Kong in February 2009.

7.Details of the applicant’s story are set out in paragraph 6 of the Director’s First Decision described below.

The Director’s Decisions

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

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

(2)     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”);

(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”).

9.By way of the Director’s Decision dated 1 April 2015 (“the Director’s First Decision”), the Director dismissed the applicant’s claim on Torture risk, BOR3 risk and Persecution risk.  The Director found that the level of risk of harm upon the applicant’s refoulement was assessed to be low because (i) there was no evidence to show that Tisoy intended to kill him [10.1]; (ii) judging from his experience, there was no evidence to show that Buddy had a strong intention of killing him [10.2]; (iii) state protection would be available to him [11]; and (iv) internal relocation was a viable alternative [12].

10.By Notice of Further Decision dated 7 April 2017 (“the Director’s Second Decision”), the Director rejected his claim on BOR2 risk for the reason that there was no evidence to show that his right to life would be violated upon return to the Philippines. 

The Board’s Decisions

11.The applicant appealed the Director’s First Decision to the Board.  The Board scheduled an oral hearing on 1 March 2016 for his appeal.  Having considered the applicant’s evidence, the Board made its evaluation of the case and came to the same findings of the Director’s First Decision. It therefore dismissed the applicant’s appeal by Decision dated 19 January 2017 (“the Board’s First Decision”).

12.The applicant also appealed the Director’s Second Decision to the Board and attended a hearing on 4 October 2018. The Board, having considered his evidence, by its Decision dated 22 February 2019 (“the Board’s Second Decision”), dismissed his appeal for the reason that the applicant failed to establish his case that his right to life would be violated upon his return to the Philippines.

Application for leave to apply for judicial review

13.The applicant filed Form 86 on 8 March 2019 for leave to apply for judicial review of the Board’s Second Decision. His applicant does not cover the Board’s First Decision, which has become final.

14.In his affirmation in support of his application, he said the Board’s Second Decision is biased and unreasonable.

DISCUSSION

15.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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

16.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. The applicant appeared before me and said it was his life, which was at stake and he had no other submission.

17.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.”

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

19.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.

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

CONCLUSION

21.I refuse to grant the applicant leave to apply for judicial review. Accordingly, I dismiss his application.

Dated the 24^th day of May 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