Abando Ervin Dick Pelagio v. Torture Claims Appeal Board / Non Refoulement Claims Petition Office

HCAL 939/2019

[2022] HKCFI 1725

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 939 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 26 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 entered Hong Kong on 4 August 2016 as a visitor. After his application for extension of stay, he was permitted to stay until 22 August 2016. However, he did not depart and had overstayed since 23 August 2016. On 24 August 2016, he surrendered to the Immigration Department. On 21 December 2016 and 13 January 2017 respectively, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by the law enforcement officers as he was a drug user.

5.According to the applicant, he became a drug addict under the influence of his friends in early 2016. The same year, Duterte was elected president and he declared a war on drugs. In July 2016, the applicant was told by his uncle that his name was on the government list of drug users. Thus, out of the fear that he would be ill-treated or even killed by the law enforcement, the applicant fled from his home village and eventually came to Hong Kong for protection. Details of his claim are set out at paragraph 7 of the Notice of Decision dated 14 June 2018 by the Director (the “Director’s Decision”) and paragraphs 10 to 17 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:

a.  risk of torture under Part VIIC 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 refused to accept that he would be harmed or killed by the law enforcement upon refoulement. In elaboration, the Director found that (i) the absence of past ill-treatments indicated an unlikelihood of future risk of harm [14]-[16]; (ii) state protection would be available to the applicant [17]-[25] and (iii) internal relocation was a viable alternative [26]-[31].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 14 February 2019, the Board conducted an oral hearing for his appeal, during which he was legally represented and also gave evidence with the assistance of an interpreter [24].

9.The Board considered the applicant’s grounds of appeal and submissions from both parties [19]-[23]. It also considered the applicant’s evidence during examination in chief and cross-examination [25]-[33]. Further, the Board sought clarifications on certain aspects of his claim [34]-[39]. After considering the evidence, as well as the parties’ submissions at the hearing and post hearing [40]-[52], the Board made the following findings.

10.The Board considered the country of origin information on Duterte’s war on drugs. It noticed that extrajudicial killing was an approach adopted by the law enforcement and accepted that it would be dangerous for persons on the list to return to the Philippines [55]-[57]. However, the Board found that the applicant fabricated his claim. It cast doubt as to whether the applicant was actually a drug user [58]-[61]. It also rejected the applicant’s claim that he fled his home country due to his involvement with drugs [62]-[64]. It found that the applicant provided inconsistent accounts on the death of his friend [65]-[66], that his claim about his uncle’s ability to see the list was not credible [67]-[69] and that the alleged visits from the police were also unpersuasive [70].

11.For the aforesaid reasons, the Board refused to accept that the applicant’s name was on the alleged list. In fact, on the applicant’s own evidence, he was no longer a drug user. Besides, based on the applicant’s described short period of drug usage, it was likely that he was not a drug pusher or addict [72]. As a result, the Board rejected his 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 8 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 enclosed the supportive documents, the Board’s Decision and the hearing bundle, without specifying any ground. In the supportive documents, he set out his worries that there is no guarantee that he would be safe if he returned to the Philippines where there is inadequate human rights protection and the police are corrupt. He also attached some newspaper cuttings showing public demonstrations against the government over the drug war.

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

15.The Court will bear in mind that the Board’s Decision 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 materials produced by the applicant in support of his application above are not valid grounds to challenge the Board’s Decision. The Board disbelieves his factual evidence. He has no factual basis for his claim. The materials of public demonstrations are not relevant.

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 9^th day of June 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