Fontanilla Dominador Jr Abaya v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1536/2019

[2023] HKCFI 3036

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1536 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;

Order by Deputy High Court Judge To:

Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.This is the Applicant’s application by Form 86 filed on 4 June 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (the “Board”) dated 20 May 2019 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 31 January 2018 (the “Notice”). 

2.He had not requested an oral hearing.  Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered his application may be justly determined on paper without an oral hearing.  

3.The Applicant is a Philippine national.  He entered Hong Kong on 7 November 2015 as a visitor and was permitted to remain until 8 November 2015.  He overstayed and was arrested on 22 January 2017.  On 24 January 2017, he raised a non-refoulement claim.

4.In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4].  His claim was dismissed by the Director’s Notice.  His appeal against the Notice was dismissed by the Decision of the Board.  He now applies for leave to apply for judicial review of that Decision.

The Applicant’s case

5.The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer.  In gist, he claims, if refouled, he would be harmed or killed by his former employer Manuel Aspiras (“Aspiras”) for refusing to work for him after Aspiras had paid a fine of 300,000 pesos for an offence committed by the Applicant and his colleagues in the course of their employment.

6.The Applicant, now aged 40, was born and raised in San Miguel, Agoo, La Union, Philippines.  He had ten and half years’ education and operated a business repairing household electrical goods from 2000 to 2008.  He cohabited with a woman and had three children.  Since 2007, his cohabitee worked as a foreign domestic helper in Malaysia and later in Hong Kong. 

7.Desiring to make more money, the Applicant took up employment as a fisherman with Aspiras in March 2008.  The fishing was carried out using illegal methods, such as dynamite and fish traps.  The Applicant was not aware of the use of illegal methods until four to five days after he started work.  In April 2008, the Applicant and his ten colleagues were arrested by the marine police for illegal fishing.  He and his colleagues appeared in court twice.  He was told by Aspiras that Aspiras paid a fine of 300,000 pesos for them.  After his last court appearance, the Applicant stopped working for Aspiras.  On about 3 May 2008, one of his former colleagues brought him before Aspiras.  Aspiras told the Applicant that no one may resign from work as he had paid a huge fine and threatened to kill anyone who attempted to resign.

8.On the following day, the Applicant reported the incident to the local police station in Agoo.  At 4 am on 4 May 2008, the Applicant heard a knock on the door of his home.  Peeping through the window, he saw four men armed with handguns.  As his mother answered the door, the men forced their way in, demanded for the Applicant’s whereabouts and searched the house (the “2008 Incident”).  The Applicant hid himself among sacks of charcoal stored outside the house.  He suspected that these men were sent by Aspiras in response to his report to the police.  He did not pursue his complaint with the police as he had no trust in the authorities because of Aspiras’s influence in his hometown.  Feeling unsafe, the Applicant moved to Aguilar, Visayas, and stayed there between 2008 and 2011.  He worked as a casual worker and porter.  He encountered no problems in Guimaras.

9.Then, the Applicant moved to Bagacay in Dumaguete and worked in a construction site.  In around February 2015, he saw two men armed with handguns entered his residence (the “2015 Incident”). He recognised one of them had visited his home during the 2008 Incident.  He believed they were sent by Aspiras.  Through his mother’s arrangements, he flew to Hong Kong on 27 September 2015.  Five days after his arrival, he met his cohabitee who was working as a domestic helper.

10.His cohabitee returned to the Philippines in November 2015.  He said when his cohabitee returned to Hong Kong, she told him that Aspiras became aware of his presence in Hong Kong through rumours and harassed her and threatened that if he and his people ever saw the Applicant and his cohabitee together, they would be killed together with their children.

11.The Applicant says he fears that he will be harmed or killed by Aspiras and his men if he is refouled to the Philippines because he had refused to continue to work for Aspiras.  He does not believe the police will protect him because Aspiras is a very influential person in his hometown since he belongs to the same political party as a former congressman.  He considers internal relocation not viable as he lacks close family connections and is incapable of seeking refuge in other provinces.

The finding of the Board

12.In answer to the Board’s question as to why he did not seek protection until his arrest in 2017 more than two years after his arrival in Hong Kong, the Applicant explained that he was not aware of the availability of non-refoulement protection.  The Board considered his explanation inconsistent with the fact that he had met his cohabited five days after his arrival in Hong Kong in 2015, lived with her after her employment was terminated in 2016, and on his admission was aware she had raised a non-refoulement claim in 2016.  The Board considered his assertion undermined his general credibility.

13.The Board accepted that the Applicant did refuse to return to work for Aspiras after the arrest incident in May 2008, but doubted his account and the reasons of being pursued by Aspiras and his men.  The Board considered his account of the 2008 incident very vague and generalised.  It found it unlikely that the four armed men would have failed to find him.  It also found his assertion that he recognised one of the two men who came to his residence in the 2015 Incident was among the four men who forced into his home during the 2008 Incident inherently implausible, given the lapse of about seven years.  The Board noted that this is an assertion made for the first time during the screening interview and had not been mentioned in his NCF.  Having regard to the Applicant’s general credibility, all the circumstances and inherent probability, the Board was not satisfied that that the Applicant had proved either of the incidents had in fact occurred. 

14.The Board also rejected the Applicant’s evidence about harassment of his cohabitee by Aspiras and his men as hearsay.

15.In conclusion, the Board was not satisfied even to the low standard applicable that there is a real risk that the Applicant would suffer ill-treatment of any sort at the hands of Aspiras or anyone else on Aspiras’ behalf for the reason asserted by the Applicant or at all, if he is refouled to the Philippines.  Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found the Applicant had failed to establish the factual basis to support his claims for protection under any of the four applicable grounds under the USM and dismissed his appeal against the Director’s Notice.

The legal principles applicable to judicial review

16.The function of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[5].

Grounds for judicial review

17.The Applicant did not put forward any grounds of application for judicial review in his Form 86.  In his supporting affirmation, he objected to the Decision and complained that the Board wrongly disregarded his dangerous situation.  In effect, he is seeking to challenge the Board’s finding of fact that he had failed to prove factual basis in support of his claim for non-refoulement protection. For reasons as explained in the preceding paragraph, this is not permissible in an application for judicial review.  In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. 

Discussion and conclusion

18.Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  The Board found the Applicant incredible and rejected almost the entirety of his case.  It was on that basis that the Board found he had failed to establish the factual basis to support his claim for non-refoulement protection under any of the applicable grounds under the USM.  These are finding of facts and of law.  Insofar as it is a finding of fact, it is exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  Insofar as it is finding of the law, it is absolutely correct.  The Court could detect no error of law or procedural unfairness in the Decision.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge his burden of proving his fears and risks. The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success.  Accordingly, the Applicant’s application for leave to apply for judicial review is refused.

Dated 22^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

[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[3] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[5] [2018] HKCA 524 at [14(1)]