Agcaoili Freddie Agcaoili v. Torture Claims Appeal Board

HCAL 1481/2019

[2023] HKCFI 2304

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1481 of 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by (counsel for) the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 45-year-old national of the Philippines who last arrived in Hong Kong on 5 August 2017 as a visitor with permission to remain as such up to 19 August 2017 when he did not depart and instead overstayed, and on 28 August 2017 he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to the Philippines he would be harmed or killed by some local members of the terrorist group New People’s Army (“NPA”) for refusing to join their group.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Vintar, Ilocos Norte, the Philippines where he worked as a farmer and various other manual works.

3.In 1993 when he was aged 16, some NPA members came to recruit him for their group in their insurgency against the Philippines government, and when he refused, they made threats against him.   

4.To avoid their threats, the Applicant was advised by his father to leave home for Manila, and afterwards he was told by his father that those NPA people had kept returning to look for him, and warned him not to return, and so the Applicant settled down in Manila where he subsequently married his wife and raised a family with 2 children by working as a tricycle driver. 

5.One day in December 2006 while on his tricycle, the Applicant was approached by several strangers whom he suspected to be NPA people who then attacked him and shot him in his right hip, but he managed to make his escape to return home and to seek medical treatments.

6.After the incident the Applicant departed for South Africa to work for a fishing company for 5 years before returning to the Philippines in 2012, but as he heard that the NPA people were still looking for him everywhere, he left the country again for Saudi Arabia to work as an electrician and a driver.

7.In 2017 he returned to the Philippines, but when he was told by his father that those NPA people were still looking for him, he on May 2017 departed again for China, Macau and eventually came to Hong Kong where he overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 16 August 2018 and attended screening interview before the Immigration Department with legal representation.

8.By a Notice of Decision dated 5 October 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

9.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial ground for believing that there will be any real risk of him being harmed or killed by those NPA people upon his return to the Philippines due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill him or that they would still have any adverse interest in him after all these years, that in any event NPA is regarded as a terrorist group by the Philippines government that state or police protection would be available to the Applicant if resorted to upon his return to the Philippines, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in the Philippines with a large population of 104 million people spread across a vast territory of more than 300,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of the country away from his home district in large cities such as Manila or Quezon City where it would be difficult if not impossible for anyone to locate him. 

10.On 16 October 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 15 March 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 20 May 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

11.In its decision the Board found material inconsistencies discrepancies and exaggeration in the Applicant’s evidence that it doubted his claim of fear of harm from the NPA people that caused him to leave his country to come to Hong Kong, that after his only encounter with the NPA people in 1993 that he had never been threatened by them again since all these years that it is not accepted that they would still have any adverse interest in him after all these years, that there is no evidence that those men who attacked him in 2006 were NPA people other than his own speculation, and concluded that the Applicant had failed to establish that he will face any risk of harm of any sort from anyone upon his return to the Philippines that his claim for non-refoulement protection in Hong Kong failed on all applicable grounds.

12.On 31 May 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affidavit of the same date in which he just stated that he rejects the decision as it disregarded his dangerous situation but without putting forward any proper ground for his intended challenge.  As such and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

13.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

14.In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 66 - 114 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim during the hearing before the Board, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.

15.The fact is that it has also been established by the Director in his decisions that the risk of harm in the Applicant’s claim if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of the Philippines, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

16.In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

17.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and accordingly I refuse his leave application.

Dated the 11^th day of September 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