Belza Dionne Salvilla v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 974/2022

[2022] HKCFI 3616

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 974 of 2022

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 August 2022 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 entered Hong Kong as a visitor on 8 May 2013 and was permitted to stay until 22 May 2013. His permission to stay was later extended to 29 May 2013.  However, he did not depart and had overstayed since 30 May 2013.  On 1 April 2014, he was arrested by the police.  On 3 April 2014, he lodged a non-refoulement claim.  However, he did not attend the notice briefing to commence the processing of his claim and absconded.  On 31 March 2016, he was arrested again by the police.  He sought a non-refoulement protection on 22 April 2016.  However, he failed to attend the notice briefing and absconded again.

5.On 20 December 2016, he was arrested by the police.  He wrote to the Immigration Department on 30 December 2016 requesting to continue his non-refoulement claim.  However, he did not return the non-refoulement claim form within the time limit and his claim was thus treated as withdrawn on 15 August 2017.  On 4 April 2022, the applicant again requested to reopen his non-refoulement claim and this request was acceded to on 14 April 2022.  He claimed that, if refouled, he would be harmed or killed by members of the New People’s Army (“NPA”) because he refused to participate in their activities.

6.In short, the applicant joined the NPA in 1997, together with his friends.  His duties included carrying food and weapons for the members during the fights against the government, as well as assisting in dealing with the casualties and the injured.  He considered himself as an active member of the NPA despite the trivial tasks.  However, in 1998, he started to get discouraged as he was sick of the fights which might put his life in danger.  As a result, the applicant would gradually decline to participate in the monthly activities.  To avoid being questioned by his friends, the applicant would still agree to these invitations.  In 2009, he went to work in Manila.  Nothing eventful happened until 2012 when the members of NPA suspected that the applicant might join the police or army because of his background as a criminology graduate.  In November 2012, the applicant was attacked by a stranger in Manila.  Feared that he would be hunted down and get killed, the applicant fled to Hong Kong for protection.  Details of his claim are set out at paragraph 11 of the Notice of Decision dated 6 June 2022 by the Director (the “Director’s Decision”).

The Director’s Decision

7.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”).

8.By way of the Director’s Decision, the Director dismissed the applicant’s claim as his claimed fear of harm was groundless.  In elaboration, the Director found that (i) he only encountered one attack which he failed to provide evidence to show NPA’s involvement or to prove the motive of this attack [23]; (ii) there was no evidence showing that the members of the NPA had real intention to cause harm or kill him [24]; (iii) there was no evidence showing that the government would target him [25]; (iv) his delay in lodging and manners in handling the non-refoulement claim were inconsistent with someone who genuinely needed protection [26]; (v) there was no evidence showing that the NPA was still as influential as claimed [27]; (vi) state protection would be available to him [28]-[32]; and (vii) internal relocation was a viable option [33]-[34].

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board.  On 3 August 2022, the Board conducted an oral hearing for his appeal, during which he testified with the assistance of an interpreter [11];[30].

10.Having assessed the evidence, the Board made the following observations.  The applicant’s evidence in relation to the details of NPA was vague.  In particular, he gave generalized evidence in relation to the training he received and the roles of himself and his friends.  He also stated that he received weapon training in university and yet he was not given a combat role in the NPA [33].  Equally illogical was the fact that he claimed to successfully convince his friends that he was still in the NPA despite he refused to participate in the activities for 9 years [34].  The Board also noted that the Philippine government issued passports to the applicant which showed that the government had no adverse interest in him [35].  It further cast doubt that the attacker was sent by the NPA [36].  While it was plausible that the NPA might suspect him to join the police or army, the fact remained that he had never joined the army or the police.  Besides, he was able to stay in the Philippines unharmed after the attack [37].

11.In addition, the country of origin information showed that the members of NPA were less than those in the 1990s.  It also defeated the applicant’s assertion that the government colluded with the NPA.  In fact, the government had been combating and prosecuting the NPA [39]-[43].  In passing, the Board noticed that the applicant had little or no knowledge about the basic information of the NPA [44].  Besides, his conducts after he arrived in Hong Kong, i.e., the delay in lodging protection claims, and the delay in pursuing his claim also undermined his credibility [45].

12.In these premises, the Board concluded that the applicant’s claim was unsubstantiated and dismissed his appeal.

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

13.The applicant has filed Form 86 dated 20 September 2022 for leave to apply for judicial review of the Board’s Decision.

14.In his affidavit in support of his application, the applicant said he does not agree with the Board’s Decision. His life is still in danger if he returns to the Philippines as his enemies are still looking for him.

DISCUSSION

15.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).

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

17.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.”

18.The Board had assessed his case and did not accept his evidence on the facts. There is no valid reason from the applicant to challenge the Board’s Decision.

19.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.

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

CONCLUSION

21.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 1^st day of December 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