Capinpin Rico Benabese v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 53/2019

[2023] HKCFI 267

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 53 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 11 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 entered Hong Kong as a visitor on 28 December 2016 and was permitted to stay until 11 January 2017. He did not depart and had overstayed since 12 January 2017. On 26 January 2017, he surrendered to the Immigration Department. On 6 February 2017, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by J-R de la Cruz (“JR”).

5.In short, the applicant’s claimed risk of harm from JR originated from an event in which he witnessed a fight between JR and a group of unknown men on 19 December 2016. When the applicant intervened and tried to separate them, JR threatened to kill him. Feared that the death threat would materialize, the applicant fled to Hong Kong for protection. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 21 March 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 as his claimed fear of harm was groundless. 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) JR demonstrated no real intention to harm or kill him [13]; (iii) state protection would be available to him [14]-[15]; and (iv) internal relocation was a viable alternative [16]-[21].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 29 August 2018, the Board conducted an oral hearing for his appeal, during which he was assisted by the interpreter [4].

9.Having considered all the evidence, the Board rejected the applicant’s claim. The Board found that the fight incident was an isolated one and there was no follow-actions from JR [28]; that his information about JR was from his aunt who did not live in the vicinity [29]; and that it was easy for the applicant to relocate to another city in the Philippines [30]-[33]. For these reasons, the applicant’s claim was not substantiated and his appeal was therefore dismissed.

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

10.The applicant has filed Form 86 dated 8 January 2019 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, the applicant simply enclosed a copy of the Board’s Decision but did not set out 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 13^th day of February 2023

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