Sacdalan Mario Capistrano v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 710/2019

[2022] HKCFI 2956

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 710 of 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
	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 6 March 2019 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 25 March 2014 and was permitted to stay as a visitor until 8 April 2014.  He did not depart and had overstayed since 9 April 2014.  On 2 September 2014, he was arrested by the police for overstaying.  On 4 September 2014, he lodged a non-refoulement.  Nevertheless, no further action was taken on his non-refoulement claim as the Immigration Department was unable to contact him.  On 15 December 2017, the applicant lodged another written signification.  The assessment of his non-refoulment claim resumed.  His claim was made on the basis that, if refouled, he would be harmed or killed by members of the illegal jueteng gang.

5.According to the applicant, he used to work as a foreign domestic helper in Hong Kong.  In December 2013, his employment contract was prematurely terminated and he returned to the Philippines.  Upon his arrival, he found out that his house was rented to the jueteng gangsters for illegal activities.  The applicant asked the gang to leave or he would have them arrested.  Thereafter, the gang moved to another house.  A few days later, the applicant learnt that the gangsters were arrested.  Since then, some unknown men had been searching for the applicant.  Although he and his family were not harmed, out of fear, the applicant fled to Hong Kong for protection.  Details of his claim are set out at paragraph 6 of the Notice of Decision dated 6 June 2018 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 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 on the basis that the level of risk of harm was assessed to be low.  In elaboration, the Director found that (i) the absence of ill-treatments from the members of the illegal jueteng indicated an unlikelihood of future risk of harm [10.1]-[10.2]; (ii) the applicant’s perceived fear was based on hearsay information [11]; (iii) state protection would be available to him [12]-[13]; and (iv) internal relocation was a viable alternative [14]-[17].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 28 November 2018, the Board conducted an oral hearing for his appeal, during which he gave evidence with the assistance of an interpreter [5].

9.Having considered the evidence, the Board made the following findings. The Board accepted the applicant’s evidence in relation to his tenants being the gang which conducted illegal activities.  It also accepted that the applicant had interactions with them, asking them to leave his house [38]. Nevertheless, the Board cast doubts on the subsequent events.  It considered the applicant’s evidence on the arrest of the tenants and their blame on him to be vague and limited [39]-[40].  It also found that the applicant’s stay in his own house and his mother’s house was inconsistent with his claim that the unknown men were looking for him [41].  Alternatively, on the applicant’s own evidence, the Board found that the alleged harms were mere inquiries about the applicant’s whereabouts [42].  In light of the past events and the lapse of time, the Board found that the unknown men had no adverse interest against the applicant [43]-[44].

10.For the aforesaid 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 13 March 2019 for leave to apply for judicial review of the Board’s Decision.

12.In his affidavit in support of his application, the applicant said he does not want to go back to the Philippines. His enemies had threatened his life and his family and they are still looking for him. He wants to stay here for the safety of his life.

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 Decisions 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.Those grounds in paragraph 12 above had been considered by the Board and they are not valid reasons 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 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