Gomez Jefferson Petallano v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2252/2018

[2022] HKCFI 2390

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2252 of 2018

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 8 October 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s 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 last entered Hong Kong on 23 September 2014 as a visitor and was permitted to stay until 8 October 2014.  On 1 January 2015, he was arrested by the police for overstaying.  On the same date, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by his business partner Sajid.

5.According to the applicant, he owned a Chinese medicine shop in a shopping mall.  In around 2012, Sajid invited him to operate a business which sold the imported illegal VCDs/DVDs.  Sajid was an influential and notorious Muslim.  7 or 8 months into the cooperation, the applicant confronted Sajid who did not share the profits with him.  Sajid refused the applicant’s proposal of sharing the profits.  In 2013, the applicant encountered Sajid’s followers who attempted to hurt him.  While he managed to escape, he sustained bruises and abrasions.  Upon knowing that Sajid kept looking for him, out of fear, he eventually fled to Hong Kong for protection.  Details of the applicant’s claim are set out at paragraph 6 of the Notice of Decision dated 31 January 2018 by the Director (the “Director’s Decision”) and paragraphs 5 to 11 of the Board’s Decision.

The Director’s Decision

6.The Director considered the applicant’s claim 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”).

7.By way of the Director’s Decision, the Director dismissed the applicant’s claim.  In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [12]; (ii) his behaviors were inconsistent with someone who genuinely feared a risk of harm [13]; (iii) state protection would be available to him [14]; and (iv) internal relocation was a viable alternative [15]-[21].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 19 June 2018, the Board conducted an oral hearing for his appeal, during which he gave evidence with the assistance of an interpreter [12].

9.Having inquired the material aspects of the applicant’s claim, the Board made the following findings.  In light of his mostly consistent evidence, the Board accepted the applicant’s version of the past events [32]-[36].  However, the Board also found that the alleged injuries were not inflicted by someone who acted in an official capacity, and that state protection was available to the applicant [43]-[49].  Further, internal relocation to Manila or Cebu was viable for the applicant [60].

10.For the above reasons, the Board rejected the applicant’s claim and dismissed his appeal.

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

11.The applicant has filed Form 86 dated 16 October 2018 for leave to apply for judicial review of the Board’s Decision.

12.In his affidavit in support of his application, the applicant did not set any ground.

DISCUSSION

13.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).

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

15.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.”

16.There is no valid reason to challenge the Board’s Decision.

17.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.

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

CONCLUSION

19.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 4^th 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