Sarabia Glen Genovia v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1138/2019

[2023] HKCFI 2672

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1138 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
	cconsideration 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.

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 18 April 2019 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 on 24 October 2015 as a visitor and was permitted to stay until 7 November 2015. He did not depart and had overstayed since 8 November 2015.  On 13 January 2016, he surrendered to the Immigration Department.  On 10 April 2017, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by the boyfriend of his separated wife and by Arman Mayormente, his childhood friend. 

5.In brevity, the applicant’s claimed fear of harm arose out of two private disputes.  The first one was with her wife’s current boyfriend.  The applicant married his wife on 1 September 1996 in Hong Kong. However, their marriage deteriorated in 2002 when his wife met her current boyfriend and left him.  In 2003, the applicant met his wife’s boyfriend in a mall where they got into a quarrel, leading to the boyfriend and his men’s assault against the applicant.  The applicant was sent to the hospital by the security guard of the mall.  He also stated that the boyfriend self-proclaimed to be a paid assassin working for a political leader.  The second dispute was between the applicant and his childhood friend Arman.  In 2003, the applicant participated in a basketball game bearing bet money versus Arman’s team.  The applicant’s team won the game.  Arman was furious and demanded the return of the bet money with death threats.  The applicant complied with his request. Yet, the applicant still feared for Arman as he was a violent man.  As the applicant learnt that the boyfriend was still asking for his whereabouts and he was also afraid that Arman would harm him if Arman knew about his complaint to the police, he decided to seek protection in Hong Kong.  Details of his claim are set out at paragraph 6 of the Notice of Decision dated 22 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:

(i)    risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(ii)   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”);

(iii)  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

(iv)  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 low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [13]-[17]; (ii) state protection would be available to him [18]-[22]; and (iii) internal relocation was a viable option [23].   . 

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 11 March 2019, the Board conducted an oral hearing for his appeal, during which he testified [6]. 

9.The Board recapped the applicant’s claim [7]-[10].  Having considered the evidence, the Board made the following findings.  First, the applicant only had one encountered with the boyfriend.  After the fight, there was nothing happened to the applicant and the boyfriend had since then never inflicted any physical harms to the applicant.  Meanwhile, Arman had only made verbal threats towards the applicant without inflicting any physical harms.  The claimed injuries therefore failed to meet the requirements under the definition of torture [20].  Second, These two disputes were private in nature without state involvements and there were no severe pain or suffering inflicted by or with the consent or acquiescence of a public official or other person acting in an official capacity [21]-[27].  Third, there was no evidence of police or state inaction [29]-[30].  In these premises, the applicant had failed to establish a non-refoulement claim in all applicable grounds.  

10.For the above 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 29 April 2019 for leave to apply for judicial review of the Board’s Decision.

12.In his affidavit in support of his application, the applicant referred to the Director, whom I shall take him as the adjudicator of the Board. He said:

(i)    the Board failed to consider his fear of harm from the boyfriend of his wife and his childhood friend and he was beaten by his wife’s boyfriend in a shopping mall;

(ii)   the Board failed to consider the COI and that the police cannot protect him from his enemies;

(iii)  the Board did not assess BOR 3 risk properly; and

(iv)  the Board did not consider that he will suffer mentally and physically.

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, for the reasons set out in paragraph 9, supra concluded that the applicant had failed to establish his claimed fear if he returns to the Philippines.

17.Those grounds under paragraph 12 are not valid grounds to challenge the Board’s Decision.  Ground (i) to (iii) are his own opinion without evidence in support.  Ground (iv) does not assist as he had not raise it before the Board for consideration.

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 2^nd day of November 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