Domingo Jaime Jr Manuel v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 499/2019

[2022] HKCFI 1792

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 499 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.This is the applicant’s application for leave to apply for judicial review of the decision dated 1 February 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Second 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.

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 24 April 2010 as a visitor and was permitted to stay until 9 May 2010. He did not depart and had overstayed since 10 May 2010. On 10 November 2010, he was arrested by the police. On 13 November 2010, he lodged a torture claim which was later taken as a 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 the family of Saldy Gundao (“Saldy”).

5.According to the applicant, on 12 August 2009, together with another friend named Jason, he and Saldy practiced wrestling. Saldy lost the game and was furious. He attempted to stab the applicant. In protecting the applicant, Jason sustained cut on his palm. Thereafter, the applicant and Jason started to beat Saldy, causing his death. While they compensated Saldy’s family, the applicant heard that one of the family members, a commander from New People’s Army (“NPA”), threatened to kill him. Out of fear, he escaped to Manila and eventually fled to Hong Kong for protection. Details of his claim are set out at paragraph 7 of the Notice of Decision dated 30 January 2015 by the Director (the “Director’s First Decision”) and paragraphs 6 to 9 of the decision dated 6 February 2017 by the Board (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:

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

(2)  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”);

(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”).

7.By way of the Director’s First Decision, the Director dismissed his claim on the grounds of Torture risk, BOR 3 risk and Persecution risk for the level of risk of harm from Saldy’s family members was assessed to be low. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [15]-[16]; (ii) state protection would be available to him [17]; and (iii) internal relocation was a viable alternative [18].

8.On 13 April 2017, for reasons set out in the Notice of Further Decision that there was no evidence to show that his right to life would be violated upon his return, the Director also rejected the applicant’s claim on BOR 2 risk (the “Director’s Second Decision”).

The Board’s Decisions

9.The applicant first appealed the Director’s First Decision to the Board. On 4 May 2016, the Board conducted an oral hearing for his appeal, during which he gave oral evidence and was cross-examined [5].

10.Having considered the applicant’s evidence, the Board found that his claim was unsubstantiated for reasons set out in the Board’s First Decision. In particular, the Board noted that, on the applicant’s evidence, he was never approached, not to mention harmed, by the NPA. There was no evidence of severe harm inflicted by the NPA members [20]. Meanwhile, even if NPA intended to harm the applicant, it was not for the purpose under the definition of torture. It was simply a private dispute without state involvement [22]-[27]. As a result, the Board rejected the applicant’s claim on Torture risk. Further, the Board found that the country of origin information (“COI”) also did not support the applicant’s assertion that the police in the Philippines would not assist him [31]. In light of the aforesaid reasons, the Board also rejected the applicant’s claim on BOR 3 risk and Persecution risk.

11.On 6 November 2018, the Board also conducted an oral hearing for the applicant’s appeal against the Director’s Second Decision, during which the applicant testified [6]. The Board noticed that the applicant did not submit further or additional facts for his BOR 2 risk claim. He simply repeated that he was afraid to go back and that his wife and kids were all in Hong Kong [19].

12.In light of the findings in the Board’s First Decision, by way of the Board’s Second Decision, the Board also rejected the applicant’s claim on BOR 2 risk and dismissed his appeal against the Director’s Second Decision.

Application for leave to apply for judicial review

13.The applicant filed Form 86 on 21 February 2019 for leave to apply for judicial review of the Board’s Decision.

14.In his affidavit in support of his application, he said he did not want to die as he was told by his family members that his enemies were still looking for him.

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.

17.Since there is no application for judicial review against the Board’s First Decision, the Board’s First Decision is final and the Board relied upon those facts found to make the findings in the Second Decision. The applicant has not been able to raise any valid reason do challenge the Board’s Second Decision.

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

20.The Court does not find any error of law or procedural unfairness in the Board’s Second Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

21.There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review of the Board’s Second Decision.

CONCLUSION

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

Dated the 7^th day of July 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