Luneta Joel Collantes v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 92/2019

[2023] HKCFI 372

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 92 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 27 December 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 last entered Hong Kong as a visitor on 5 September 2016 and was permitted to stay until 19 September 2016.  He did not depart and had overstayed since 20 September 2016. On 14 October 2016, he was arrested by the police for overstaying.  On 16 October 2016 and 19 December 2016, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by a gangster group called Tau Gamma (“TG”).

5.According to the applicant, he was a solider in the army from 2004 to 2009.  He retired from his duty in 2009 and started working as a driver and later a domestic helper in Hong Kong.  In 2015, he learnt that his friends, Richard, Riel and Jimmy were involved in illegal drug dealings.  They were also members of the TG.  The applicant disapproved of these illegal activities.  He reported his friends to his former batch mate in the army, Ferdinand, who was an intelligent agent.  The applicant’s report led to the arrest of his friends.  Nevertheless, his friends told the police that the applicant was also involved in these activities.  Ferdinand told the applicant that he was added to the watch list.  Thereafter, Riel was released from prison and again participated in the illegal drug business.  The applicant, then a police informant, reported Riel to Ferdinand.  A lady associated with Riel was killed during the police operation and Riel was arrested.  In June 2016, the applicant received messages of threats and also saw people riding a motorcycle outside his house.  The applicant then escaped to his friend’s house before eventually coming to Hong Kong for protection.  In February 2018, while in Hong Kong, he heard that Ferdinand was shot.  Details of his claim are set out at paragraph 7 of the Notice of Decision dated 8 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 as his claimed fear of harm from the TG was groundless.  In elaboration, the Director found that (i) the alleged future risk of harm was unreal and unforeseeable [14]; (ii) his past behaviors indicated that the risk of being ill-treated or killed was not as imminent as he claimed [15]; (iii) state protection would be available to him [16]-[20]; and (iv) internal relocation was a viable option [21]-[22].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  Having considered the relevant legal principles and the applicant’s claim, the Board decided that it could fairly dispose the appeal on paper without an oral hearing [17]-[21].

9.The Board found that, on the applicant’s evidence, it was not persuaded that the motorcyclists outside his house were sent by his friends nor was it convinced that they had the intention to harm him [24].  The applicant was never harmed by members of the TG [24].  Meanwhile, there was no evidence of state involvement [27].  While he alleged that the police would not protect him, on his own evidence, he had never sought protections from the police or other government authorities [32].  In any event, internal relocation was a viable alternative for 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 10 January 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 the Director and the Board were wrong in reaching their decisions as they failed to consider the ground realities in the Philippines.

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.The reasons in paragraph 12, supra are not valid 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 28^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