Viloria Nelson Jarata v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 2470/2018

[2022] HKCFI 3198

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2470 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 12 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”), I shall deal with his application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.The applicant is a national of the Philippines. He entered Hong Kong on 29 January 2011 and was permitted to stay until 12 February 2011. He did not depart and had overstayed since 13 February 2011. On 25 May 2011, he was arrested by the police for overstaying. On 5 July 2011, he was released on recognizance. However, he failed to report for recognizance and had absconded since 22 November 2011. On 9 April 2017, he was arrested by the police. It is noted that the applicant had previously lodged a torture claim which was rejected on 25 October 2011. His subsequent petition to the rejection was dismissed on 13 December 2011. By way of the written significations on 12 April 2017, 17 April 2017 and 1 May 2017, the applicant lodged a non-refoulement claim. His claim was therefore assessed on all the applicable grounds other than that of torture risk[1].

5.The applicant’s claim was based on the fear of harm by Mr. Wilson Taca (“WT”) and upon refoulement, he would be harmed or killed by WT as he blamed the applicant for testifying in an armed robbery case against him and Mr. Bulusan (“BU”). In short, the applicant stated that he worked in a bank with WT as security guards. On 23 September 2009, the bank was robbed. Both the applicant and WT were asked to give statements at the police station. Thereafter, WT and BU were charged with the offence of robbery. Nevertheless, they were later acquitted for insufficient evidence. Starting in March 2010, the applicant received four threatening messages from WT who blamed the applicant for testifying against him and BU. Out of fear, the applicant fled to Hong Kong for protection. Details of his claim are set out at paragraph 9 of the Notice of Decision dated 17 October 2017 by the Director (the “Director’s Decision”).

The Director’s Decision

6.The Director considered the applicant’s claim in relation to the following risks:

a.  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”);

b.  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

c.  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 as the level of risk of harm was assessed to be low. In elaboration, the Director found that (i) the circumstances of the event indicated that WT had no real intention to cause harm or even kill him [18]-[20]; (ii) state protection would be available to him [21]; and (iii) internal relocation was a viable alternative [22].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 26 July 2018, the Board conducted an oral hearing for his appeal, during which he gave evidence [17]-[26].

9.Having considered the applicant’s evidence, the Board made the following findings. The Board accepted the applicant’s accounts on the bank robbery [30]. However, it rejected that he would face any real or substantial risk of harm from WT or BU. First of all, the applicant had lived in the same address from the time of the robbery to the time he left the Philippines, during which, he encountered no problems with either WT or BU [32]. Secondly, the applicant failed to provide satisfactory explanation why he could not enjoy state protection or relocate to other villages [33]. As a result, the Board rejected the applicant’s claim and dismissed his appeal.

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

10.The applicant has filed Form 86 dated 6 November 2018 for leave to apply for judicial review of the Board’s Decision.

11.In his affidavit in support of his application, the applicant did not raise any specific ground.

DISCUSSION

12.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).

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

14.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.”

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

16.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.

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

CONCLUSION

18.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 18^th day of October 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