Pasaoa Romeo Jr Mejia v. Torture Claims Appeal Board

HCAL 1326/2019

[2022] HKCFI 2115

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1326 of 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by (counsel for) the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 42-year-old national of the Philippines who arrived in Hong Kong on 28 March 2015 as a visitor with permission to remain up to 11 April 2015 when he did not depart and instead overstayed, and was arrested by police on 17 June 2015. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to the Philippines he would be harmed or killed by his former girlfriend and her family for refusing to resume his relationship with her. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Navaluan, Mangaldan, Pangasinan, the Philippines. After leaving school he dated his former girlfriend for several years but eventually broke up with her in 2000, and one year later he married his wife and raised a family with 3 children, and worked as a tricycle driver in his home district.

3.Many years later in 2008 the Applicant came across his former girlfriend who then demanded that they resumed their relationship, but when the Applicant refused, and despite being told that he was already married with a family with children, she threatened to kill him if he refused to do so, and so to avoid further threats and harassments from her, the Applicant left the Philippines to work in Saudi Arabia before returning to the Philippines in 2013.

4.However, in February 2015 his former girlfriend again demanded that they resumed their relationship, and when the Applicant refused, her brother and uncle who were involved in drug trafficking activities also made the same demand with threats to kill him if he refused, whereupon the Applicant became fearful for his life, and on 28 March 2015 he departed the Philippines for Hong Kong where he overstayed, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 11 July 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

5.By a Notice of Decision dated 21 August 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

6.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real risk of him being harmed or killed by her former girlfriend or her family upon his return to the Philippines due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill him, that it was a private personal dispute between them without any official involvement that state or police protection would be available to the Applicant if resorted to upon his return to the Philippines, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in the Philippines with a large population of 104 million people spread across a vast territory of more than 300,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of the country away from his home district in large cities such as Manila where it would be difficult if not impossible for his former girlfriend or her family to locate him.

7.On 3 September 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 27 February 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 10 May 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board found it incredible and unreliable that the Applicant’s former girlfriend would in years after they had ended their relationship suddenly appear to demand to resume their relationship with threats against the Applicant or that her brother and uncle would be involved that it is not accepted that their purported threats would give rise to the Applicant’s fear as claimed, and that in any event in the absence of any official involvement that state/police protection would be available to the Applicant upon his return to the Philippines as well as reasonable internal relocation for him to move safely to other part of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.     

9.On 17 May 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affidavitof the same date he just stated that he is not satisfied with the decision in rejecting his claim but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application. As such and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

10.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

11.In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim if true is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of the Philippines, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                

12.Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

13.Furthermore, the Applicant recently on 26 May 2022 filed an affidavit requesting to withdraw his application as he wants to return to his home country.

14.In the premises, as I am for the reasons given not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view his latest intention to return to his home country, I accordingly dismiss his leave application.

Dated the 13^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