Sevillano Joebert Colado v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 928/2019

[2022] HKCFI 1433

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 928 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.The applicant applies for leave to apply for judicial review of the Decision dated 28 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will 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 last entered Hong Kong on 20 June 2016 as a visitor.  Upon examination by the immigration officer, he claimed to visit his wife for two weeks.  He was allowed to stay until 4 July 2016.  However, he did not depart and had overstayed since 5 July 2016. On 20 July 2016, he surrendered to the Immigration Department.  On 12 January 2017, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by his creditor Jerry.

5.According to the applicant, in 2013, he borrowed money from Jerry for his marriage and his restaurant.  Jerry was connected with gambling and drug syndicates.  However, in January 2016, his restaurant was damaged by his sibling and the applicant had defaulted the repayments.  From February 2016 onwards, Jerry and his men attacked and threatened the applicant.  The applicant’s complaint to the Barangay, a government authority that dealt with complaints and if substantiated, would refer the matter to police, was of no avail as the captain refused to register his complaint.  Out of fear, he eventually fled to Hong Kong for protection.  Details of his claim are set out at paragraph 6 of the Notice of Decision dated 13 February 2018 by the Director (the “Director’s Decision”) and paragraph 6 of the Board’s Decision as described below.    

The Director’s Decision

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

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

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  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

d.  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 dismissed his claim. The Director found that the level of risk of harm upon his refoulement was assessed to be low because (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [12]-[13]; (ii) on his own evidence, Jerry had shown no real intention of harming or killing him [14]; (iii) Jerry was not as powerful as alleged by the applicant [15]; (iv) the loan dispute was private without state involvement [16]; (v) the applicant’s behaviors were inconsistent with his past experience [17]; (vi) the applicant’s credibility was in doubt [18]; (vii) state protection would be available to him [19]-[24] and (viii) internal relocation was a viable alternative [25]-[29]. 

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 26 October 2018, the Board conducted an oral hearing for his appeal, during which the applicant was assisted by an interpreter [5].  Before the Board, the applicant added a new claim that he would be harmed or killed by his wife’s ex-husband, abbreviated as “H”, who was released from the prison [8(c)].

9.The Board considered the applicant’s additional information as listed out at paragraph 16 of the Board’s Decision.  Insofar as the claim of harm from Jerry was concerned, the Board found that the applicant failed to establish that Jerry was a loan shark and had extended two loans to him [19 (a)-19(e)]. It also found that the applicant gave conflicting accounts in relation to the alleged risk of harm from H [19(f)].  As a result, the Board found that the applicant had failed to establish the risk of harm from either Jerry or H. 

10.In addition, the Board found that Jerry had not inflicted any harm which amounted to sufficient level of severity and had not harmed any of the applicant’s family despite they still resided in the home village.  It also found that H had no intention to harm or kill the applicant and his wife. Further, state protection and internal relocation were both viable options for the applicant [30].

11.For the above reasons, the Board rejected the applicant’s claim and dismissed his appeal.   

Application for leave to apply for judicial review of the Board’s Decision

12.The applicant has filed Form 86 dated 4 April 2019 for leave to apply for judicial review of the Board’s Decision.

13.In his affidavit in support of his application, the applicant said relocation to another place is still not safe in his country.

DISCUSSION

14.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).

15.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

16.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.”

17.The ground above is not valid reason to challenge the Board’s Decision.

18.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.

19.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

20.I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 30^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