Santos Renato Manalo v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1050/2019

[2022] HKCFI 2250

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1050/2019

Application for Leave to Apply for Judicial Review

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

Following;

	consideration of documents only;          or
	onsideration 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 4 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office, which deals with the applicant’s BOR 2 risk claim (the “Board’s Second Decision”). 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.

2.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

3.The applicant is a national of the Philippines.  He entered Hong Kong on 25 January 2010 as a visitor and was permitted to stay until 8 February 2010.  He did not depart and had overstayed since 9 February 2010.  On 10 February 2010, he surrendered to the Immigration Department for overstaying.  On 12 March 2010, he lodged a torture claim.  Upon the commencement of the unified screening mechanism, his torture claim was taken as a non-refoulement claim and assessed on all applicable grounds.  His claim was made on the basis that, if refouled, he would be harmed or killed by some unknown men since he witnessed a murder.

4.According to the applicant, one day in October 2009, he witnessed a shooting incident, during which a political leader was killed.  On 20 October 2009, he received a message of death threat.  Thereafter, apart from the messages of death threats, the applicant also saw some unknown man patrolling around his house.  While they did not take any action, the applicant was scared.  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 31 March 2015 by the Director (the “Director’s First Decision”) and paragraphs 3 to 12 of the Board’s Decision. 

The Director’s Decisions

5.The Director considered his application 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”).

6.By way of the Director’s First Decision, the Director dismissed the applicant’s claim on the grounds of Torture risk, BOR 3 risk and Persecution risk as the level of risk of harm upon his refoulement was assessed to be low. In elaboration, the Director found that (i) the absence of ill-treatments from the unknown men indicated an unlikelihood of future risk of harm [12]; (ii) state protection would be available to him [13]-[14]; and (iii) internal relocation was a viable alternative [15].

7.In the Notice of Further Decision dated 2 May 2017, the Director found that the applicant’s right to life would not be violated if refouled and thus dismissed his claim on BOR2 risk (the “Director’s Second Decision”).

8.For simplicity, the Director’s First Decision and the Director’s Second Decision will be referred to collectively as the “Director’s Decisions”.

The Board’s Decisions

9.On 8 April 2015, the applicant filed a notice of appeal/petition against the Director’s First Decision.  On 1 June 2016, the Board conducted an oral hearing for his appeal. 

10.The Board found that the alleged unknown men had no real intention to harm or kill the applicant as they had ample opportunities to inflict harm but chose not to [17].  It also noted that they should have known that the applicant or his family no longer resided in that house [18]-[19].  Thus, the applicant’s evidence on this aspect was not credible.  The applicant’s evidence on whether he reported the matter to the police was inconsistent [20]-[21]. Further, the certificate from the police station did not support the applicant’s contention [22]-[29].

11.In assessing the individual grounds, the Board noted that the messages were merely empty death threats [31]-[32]; that state protection would be available to him [34]-[37]; that internal relocation was also a viable option [38]-[41].  Thus, in the decision dated 15 March 2017, the Board rejected the applicant’s claim and dismissed his appeal (the “Board’s First Decision”).

12.The applicant also appealed against the Director’s Second Decision. After the oral hearing on 18 March 2019, in which the applicant gave evidence, the Board dismissed the applicant’s appeal.

13.Relying on the findings in the Board’s First Decision, by way of the Board’s Second Decision, the Board also concluded that his claim on BOR 2 risk was not substantiated and thus dismissed his appeal.

Application for leave to apply for judicial review

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

15.In his affirmation in support of his application, he said he was against the Board’s Decision without stating 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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

17.The Court will bear in mind that the Board’s Decision 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.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.

CONCLUSION

22.I therefore refuse to grant leave to the applicant to apply for judicial review.  Accordingly, I dismiss his application.

Dated the 3^rd day of August 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