Dalope Eduardo Jr Alvarez v. Torture Claims Appeal Board and Another

HCAL 39/2019

[2022] HKCFI 2246

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 39 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 the Applicant in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 45-year-old national of the Philippines who arrived in Hong Kong on 13 June 2012 as a visitor with permission to remain up to 27 June 2012 when he did not depart and instead overstayed, and was arrested by police 3 years later on 20 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 the terrorist group New People’s Army (“NPA”) for refusing to join their group. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Bayambang, Pangasinan, the Philippines. While at university he attended an army training course for 2 years which was compulsory for all undergraduate students, and after leaving school he worked as a bus driver in his home district.

3.In 2011 he was asked by his uncle to drive some NPA people to attend a NPA meeting, during which those NPA people were impressed by the Applicant’s past military training, and subsequently tried to recruit him to join their group by inviting him to attend their meetings, but as the Applicant had no intention to join them, he therefore put forward excuses that he needed time to think about their invitation.

4.Thereafter the NPA people tried to press his uncle to get the Applicant to agree to join their group, and when the Applicant kept stalling for more time for his consideration, one day in January 2012 he was warned by his uncle to leave his home village as the NPA people were angry with him and had threatened to kill him, and so the Applicant fled to Manila to take shelter in his sister’s place, but when he later heard that the NPA people were still looking for him everywhere, he therefore departed the Philippines on 13 June 2012 for Hong Kong where he subsequently overstayed, and upon his arrest by the police 3 years later in June 2015, he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 30 January 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 27 February 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 assessed the level of risk of harm from the NPA people upon his return to the Philippines as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of the NPA people to harm or kill him other than hearsay from the Applicant’s uncle or of any reason for them to specifically target him for recruitment due to his past military training as even on his own admission that such military training was compulsory to all Filippo college students that there is no reason that they must recruit him or to still have any adverse interest in him after all these years since he left the country, that in any event as NPA was regarded as a terrorist group 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 or any areas where NPA normally operated such as Manila where he had stayed before without incidents and where it would be difficult if not impossible for him to be located by anyone.

7.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 6 November 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 27 December 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board found serious inconsistencies and contradictions in the Applicant’s evidence which undermined the reliability of his claim of fear of harm from the NPA for him to flee his home country for Hong Kong and which was further undermined by his failure to raise his claim upon first arriving in Hong Kong until some 3 years later after his arrest by police that it doubted the credibility of his claim, that in any event as NPA is considered by the Filipino government as a terrorist group that state/police protection would be available to the Applicant upon his return to the Philippines as well as reasonably internal relocation for him to move safely to other part of the country away from his home district or from where the NPA normally operated and without any risk of being located by anyone that his claim for non-refoulement protection failed on all the applicable grounds.

9.On 7 January 2019 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and put forward the following grounds for his intended challenge:

(1)  Misdirection in law in that the Adjudicator misdirected himself on the law by taking into account that the Applicant had to have experienced torture in the past in order to establish substantial grounds to believe that there was a risk of torture in the future;

(2)  Procedural impropriety/unfairness in the Adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of his claim;

(3)  Irrationality in the Adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of his claim;

(4)  Irrationality in the Adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in the Philippines;

(5)  Irrationality in the Adjudicator’s failure to analyze and assess whether state protection exists in the Philippines and misdirected himself as to the extended meaning of state protection;

(6)  Irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(7)  Procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the Applicant;

(8)  Procedural impropriety/unfairness in the Adjudicator applying the incorrect standard of proof in his decision; and

(9)  Procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the Applicant resulting in unfair procedure.

10.These are however all just broad and vague assertions of the Applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision or misdirected itself in law, or in what way did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case, or how did the Adjudicator apply the incorrect standard of proof in the decision, or in what way was his legal representation from his assigned lawyer insufficient. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant that I do not find any of them reasonably arguable for his intended challenge.

11.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.

12.The only other complaint which the Applicant appeared to have made with any elaboration was about the hearing bundle being provided to him only a few days before his appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given him insufficient time to prepare for his appeal.

13.Even if it is true that the hearing bundle indeed came to him late as alleged, and the Applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, given the fact that the Applicant is not entirely ignorant of the English language and that most of the documents including his NCF, record of his screening interview and the Director’s decision should be well familiar to him as they had earlier all been made available to him when he still had legal representation from DLS, whilst his NCF was completed on his own instructions with legal assistance from DLS, and that at his oral hearing he never raised any issue or requested the Adjudicator for further time to enable him to better prepare for his appeal. Accordingly I do not find anything amiss arising from the hearing bundle for the Applicant in his appeal before the Board or that this ground is reasonably arguable for his intended challenge either.

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

15.In the premises and 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.

16.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.

Dated the 22^nd 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