Santos Salvador Jr Liquigan v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1049/2019

[2022] HKCFI 1699

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1049 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 29 March 2019 by the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dismissing the applicant’s claim on BOR2 risk[1] (the “Board’s Second 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 as a visitor on 1 January 2009. After his extension of stay was granted, he was permitted to stay until 22 January 2009. However, he did not depart and had overstayed since 23 January 2009. On 6 February 2010, he was arrested by the police. On 9 February 2010, he lodged a torture claim which was later taken as non-refoulement claim upon the commencement of unified screening mechanism. His claim was made on the basis that, if refouled, he would be harmed or killed by some unknown corrupt politicians because of his previous involvement with a party called Bayan Muna (“BM”).

5.According to the applicant, under his elder sister’s influence, he became a member of BM in 1999, assisting the party in distributing pamphlets. One night in mid-2008, some people threw stones at his house and some threatened to kill him and burn his house. The applicant believed that it was due to his activities in BM which affected some corrupt politicians. Two weeks later, the applicant’s family was again threatened by some unknown people. In August 2008, he and his elder sister participated a rally which later turned into a riot, resulting the death of a BM member. Out of fear, he fled to Hong Kong for protection. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 12 March 2015 by the Director (the “Director’s First Decision”) and paragraph 3 of the Board’s First Decision described below.

The Director’s Decisions

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 First Decision, the Director dismissed his claim on Torture risk, BOR3 risk and Persecution risk for the level of risk of harm upon his refoulement was assessed to be low. The Director found that (i) there was no evidence that the corrupt politicians would target the applicant who held an insignificant role in BM, that the applicant was ever physically harmed and that the perpetrators had ever searched for him [14]-[16]; (ii) state protection would be available to him [17]; and (iii) internal relocation was a viable alternative [18]. On 18 April 2017, for reasons set out in the Notice of Further Decision that there was no evidence to show that the applicant’s right to life under BOR2 would be violated upon his return, the Director also rejected the applicant’s BOR2 claim (the “Director’s Second Decision”).

The Board’s Decisions

8.The applicant first appealed the Director’s First Decision to the Board. On 15 February 2016, the Board conducted an oral hearing for his appeal, during which he chose not to give evidence [4].

9.In assessing the individual grounds, the Board found that the applicant’s evidence was vague. For example, he could not confirm the numbers and identities of the attackers. He failed to provide any details as to whether his sister or himself was the target, as well as the cause of death of the BM member. Further, there was no evidence of state involvement [7]-[9]. Meanwhile, there was no evidence of physical harms, not to mention severe pain or suffering of the applicant [12]. In addition, the Board agreed with the Director’s assessment on internal relocation and also found that state protection was available to him, based on the available country of origin information(“COI”). Thus, the Board rejected the applicant’s claim on Torture risk [14]-[19]; [28]. For these reasons, the Board also rejected the applicant’s claim on BOR3 risk and Persecution risk. Independently assessed, the Board found that the applicant’s evidence lacked credibility.

10.By way of the Board’s First Decision, the Board dismissed the applicant’s appeal against the Director’s First Decision.

11.On 13 February 2019, the Board held an oral hearing for the applicant’s appeal against the Director’s Second Decision. In the notice of appeal/petition, the applicant added that he had a criminal record for drug offences and he feared that the Philippine police would kill him for mistaken identity [5].

12.The Board considered the updated COI on the killings of mistaken identity. Nevertheless, the applicant confirmed that he had no personal experience regarding the issue of mistaken identity but shared the information that his second cousin died from this cause. He also confirmed that he had no knowledge of the current situation and did not express any personal views about the Philippine police [8].

13.Having considered the additional evidence and the findings in the Board’s First Decision, by way of the Board’s Second Decision, the Board also rejected the applicant’s appeal against the Director’s Second Decision.

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

14.The applicant has filed Form 86 dated 17 April 2019 for leave to apply for judicial review of the Board’s Decision.

15.In his affidavit in support of his application, the applicant said he was against the Board’s Decision without specifying any ground.

DISCUSSION

16.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).

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

18.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.”

19.There are no valid reasons to challenge the Board’s Decision.

20.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.

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

CONCLUSION

22.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 23^rd 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