Garan Edgar Orpilla v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1019/2019

[2023] HKCFI 1832

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1019 of 2019

BETWEEN

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 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not ask for a 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 RHC, 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 13 September 2016 and was permitted to stay until 27 September 2016. He did not depart and had overstayed since 28 September 2016.  On 27 February 2017, he surrendered to the Immigration Department.  On 27 November 2017, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by two drug dealers, Mr. Ben Chua and Mr. Carlo Co.

5.In short, the applicant stated that Ben and Carlo were influential and powerful drug dealers in his home village.  They often distributed the drugs to the youngers, leading to an increase of crime rate and other social problems. The applicant decided to report them to the police.  However, not only did the police not take any actions but Ben and Carlo also found out about his complaint to the police.  On 10 September 2016, they went to the applicant’s house, posing death threats.  Out of fear, the applicant’s family moved to other location and the applicant fled to Hong Kong for protection.  Details of his claim are set out at paragraph 5 of the Notice of Decision dated 7 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.  In elaboration, the Director found that (i) the lack of past ill-treatments indicated no real or foreseeable risk of harm [10]; (ii) state protection would be available to him [11]-[17]; and (iii) internal relocation was a viable option for him [18]-[19].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 9 January 2019, the Board conducted an oral hearing for his appeal, during which he testified with the assistance of an interpreter [7].

9.The Board found that the applicant’s oral evidence was consistent with those in his written statements and accepted his version of events [31]. However, the Board found that the behaviors of the two drug dealers did not show any intention to harm or kill the applicant and thus there was no genuine or substantial risk of harm from them [32]-[34].  Meanwhile, having considered the country of origin information, the Board concluded that state protection and internal relocation were both available to the applicant [35]-[42].

10.In light of the aforesaid, the Board concluded that the applicant’s claim was without merits and thus dismissed his appeal.

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

11.The applicant has filed Form 86 dated 15 April 2019 for leave to apply for judicial review of the Board’s Decision.

12.In his affidavit in support of his application, he said he rejects the Board’s Decision as it disregarded his dangerous situation.

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 Decision 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 Board had assessed his evidence and, for the reasons given, found that there is no real risk of the applicant being harmed or killed if he returns to his country. The grounds set out in paragraph 12, supra is 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 to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 25^th day of July 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