Gacayan Mariano Subido v. Torture Claims Appeal Board

HCAL 319/2019

[2023] HKCFI 2949

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 319 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 the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 52-year-old national of the Philippines who arrived in Hong Kong on 2 October 2011 as a visitor with permission to remain as such up to 19 October 2011 when he did not depart and instead overstayed, and was arrested by police almost 2 years later on 21 July 2013. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to the Philippines he would be harmed or killed by a fellow villager and/or the mayor of Ampatuan Municipality over their personal disputes. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born in Buluan, Maguindanao, the Philippines and was raised in Village San Pedro, Quirino, Sultan Kudarat. After leaving school he worked as a farmer on his parents’ farmland, got married and raised a family with 3 children in his home village.

3.In 2003 the Applicant inherited his parents’ farmland and continued to grow crops thereon. In about June 2006 in order to meet his son’s medical expenses, the Applicant borrowed a loan from his village councilor Casim by charging his farmland to Casim as security for the loan to be repaid within 3 years, and meanwhile Casim could use the farmland by planting crops for his own use.

4.However, in December 2006 the Applicant discovered that Casim had been stealing soil from his farmland for use elsewhere, and after trying in vain to stop Casim from continuing to do so, the Applicant borrowed money from his relatives to repay Casim in order to get back his farmland, but Casim still refused to return the farmland to him and even made threats against him, of which the Applicant then sought assistance from the police.

5.While the police were making their investigation, one day in early 2007 while he was on his way home, the Applicant saw some men approaching him with guns whom he suspected were sent by Casim to kill him, but he managed to make his escape and ran away unharmed.

6.After the incident the Applicant became fearful for his safety and left his home village for Taculong City in Ampatuan Municipality to work as a welder.

7.In November 2009 the Applicant was sent by his employer to do repair work in the house of mayor Andal of the Ampatuan Municipality, during which he heard that there was a shooting massacre in Ampatuan with many casualties, and when people started to accuse the mayor of being involved in the shooting, the mayor asked the Applicant to find witnesses for him to prove his innocence, but when the Applicant was unable to do so, Andal threatened to kill him, and so the Applicant fled from his house and escaped to Manila.        

8.Given the political influence of the mayor, the Applicant feared it would not be safe to remain in the Philippines, and so on 2 October 2011 he departed for Hong Kong where he subsequently overstayed, and upon his arrest by the police almost 2 years later in July 2013, he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 27 January 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

9.By a Notice of Decision dated 15 February 2017 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”).

10.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from Casim or Andal upon his return to the Philippines as low 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 since he left the country in 2011, that in any event these were private personal disputes between them without any official involvement that state or police protection would be available to the Applicant if resorted to, 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 102 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 areas of the country away from his home district in large cities such as Manila where it would be difficult if not impossible for anyone to locate him.

11.On 27 February 2017 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 4 July 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 24 January 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

12.In its decision the Board found no further risk from Casim on the Applicant’s own admission that he had already repaid the loan to Casim, settled his dispute with him and had repossessed his farmland long before he left the country, while there were numerous material inconsistencies discrepancies and contradictions in his evidence over his alleged threats from mayor Andal that it doubted his claim of fear of harm from Andal or his family that caused him to leave the country to come to Hong Kong for protection, that the credibility of his claim was further undermined by his failure to raise his claim upon first arriving in Hong Kong until almost 2 years later and only after his arrest by the police, and that in any event relevant COI show that Andal was subsequently arrested by the police and charged by the authorities in Manila in 2009 that it is not accepted that Andal or his family would still pose any risk to the Applicant upon his return to the Philippines, and that state or police protection would be available to the Applicant as well as reasonable internal relocation for him to move safely to other part of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.    

13.On 4 February 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 or in his supporting affirmation of the same date to which he just attached a copy of the decision without putting forth 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.

14.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.

15.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 60 - 69 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, 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 finding of the Board.  

16.The fact is that it has also been established by both the Director and the Board in their respective decision 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, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                

17.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.

18.Moreover, shortly before the scheduled hearing of his application, the Applicant on 7 November 2023 filed an affidavit requesting to withdraw his application as all his problems are resolved and that it is now safe for him to return to his home country.

19.In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation that it is now safe for him to return to his home country, I accordingly dismiss his leave application and vacated its scheduled hearing on 21 November 2023.

Dated the 16^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