Temporal Mark Ryan Reyes v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1147/2019

[2023] HKCFI 2812

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1147 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.

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 25 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.

The applicant

3.The applicant is a national of the Philippines.  He last entered Hong Kong on 25 April 2015 as a visitor and was permitted to stay until 9 May 2015.  He did not depart and had overstayed since 10 May 2015.  On 22 October 2015, he was arrested by the police for overstaying.  During detention, he had expressed his intention to lodge a non-refoulement claim.  However, he was unable to be contacted after he was released on recognizance.  As a result, on 13 December 2017, the Immigration Department decided not to take further action on his claim.  On 11 February 2018, the applicant lodged his non-refoulement claim again and the process of his claim was thus resumed.  His claim was made on the basis that, if refouled, he would be harmed or killed by his creditor Renato. 

4.In short, the applicant borrowed a loan from Renato in mid or late 2009 for his farming business.  Unfortunately, his harvests in both March and November 2010 were not satisfactory.  Thus, he could only settle the partial payments with Renato.  To compensate Renato’s loss, the applicant agreed to take out another loan with him.  However, in August 2011, his plants were all destroyed due to a flood.  In October 2011, Renato visited the applicant, threatening to harm him and his family if he failed to settle the loan in full.  Since then, he had been followed by two men on motorcycles, who he suspected to be sent by Renato.  In early 2012, unable to cope with the pressure, the applicant escaped to live with his friends.  In mid-2014, three strangers fired gunshots outside his house and stormed into his house, destroying the door-knob of the front door.  They assaulted him and told him to repay Renato.  Suspecting that his friend tipped Renato about his location, the applicant moved around.  Later, at the advice of a foreign domestic helper in Hong Kong, the applicant fled to Hong Kong for protection.  Details of his claim are set out at paragraph 9 of the Notice of Decision dated 10 October 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

5.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”).

6.By way of the Director’s Decision, the Director dismissed the applicant’s claim.  In elaboration, the Director found that (i) the applicant’s claimed risk of harm from the creditor was groundless [14]-[18]; (ii) state protection would be available to him [19]-[22]; and (iii) internal relocation was a viable option [23].

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board.  On 27 March 2019, the Board conducted an oral hearing for his appeal.  At the outset, the Board considered the applicant’s notice of appeal, containing hearsay information that he would be killed if refouled, and rejected the ground as it lacked credibility [20]-[23].

8.Meanwhile, the Board found that there was no risk of harm of requisite degree of severity [26].  In particular, the strangers who followed him did not pose any threats [27]; the applicant was only assaulted once and the injuries sustained were not severe [28]; and there was no credible evidence of any subsequent threats [29]. 

9.In any event, state protection and internal relocation were both viable alternatives to the applicant [48]-[56].  Therefore, the Board rejected his claim and dismissed his appeal.

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

10.The applicant has filed Form 86 dated 30 April 2019 for leave to apply for judicial review of the Board’s Decision.

11.In his affidavit in support of his application, the applicant said that he wants to review his case again, without raising 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.The Board did not accept his evidence and found that state protection and alternative internal relocation are available to him.  There is no valid reason to challenge the Board’s Decision.

16.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

17.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 14^th 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