Prado Dexter Pascual v. Torture Claims Appeal Board

HCAL 1567/2019

[2023] HKCFI 3164

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1567 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:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 38-year-old national of the Philippines who arrived in Hong Kong on 30 September 2008 as a visitor with permission to remain as such as extended up to 28 October 2008 when he did not depart and instead overstayed, and was arrested on 18 January 2009 when he subsequently raised a torture claim with the Immigration Department on the basis that if he returned to the Philippines he would be harmed or killed by some college fraternity students in revenge for the death of one of their members in a fight in which the Applicant was involved while in college, and after his torture claim was rejected, he then sought non-refoulement protection on the same basis. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Pasil, Kalinga, Apayao, the Philippines. While in college he joined the Samahang Ilocano Fraternity (“SIF”) which often came into conflicts with rival APO Fraternity (“APOF”) when members of the two fraternities were often involved in fights within the university, and in one such fight in 2008 in which the Applicant also participated, one of the APOF members was killed, and as a result the Applicant together with his fellow SIF members were arrested by police, but were subsequently released without charge after the police were unable to identify who was responsible.

3.However, when the APOF members swore to take revenge against the Applicant and his fellow SIF members, and after one of the SIF members had subsequently been killed, the Applicant became fearful for his life and fled to Manila, and on 30 September 2008 he departed the Philippines for Hong Kong, and upon his subsequent arrest he raised his torture claim, and after it was rejected he then sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 24 July 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

4.By a Notice of Decision dated 23 August 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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”).

5.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that he would be harmed or killed by the APOF members upon his return to the Philippines due to the absence of any past ill-treatment from them, that there is no evidence that the Applicant had been specifically targeted by the APOF for harm or that they would still have any adverse interest in him after all these years since he left the country in 2008, that in any event in the absence of 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 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 areas of the country away from his home district in large cities where it would be difficult if not impossible for anyone to locate him.

6.On 3 September 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 24 January 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 8 May 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

7.In its decision the Board accepted the Applicant’s claim of being involved in a fight between student fraternities in college that led to the death of a student but found no evidence that the Applicant had been so targeted for revenge especially when he was able to continue living in the Philippines for more than one year without incidents before he left the country that it is not accepted that upon his return to his home country after all these years that he would face any risk of harm from his fellow students or from anyone for whatever reason that it concluded that in the absence of any official involvement that state or police protection would be available to the Applicant if so needed upon his return to the Philippines that his claim for non-refoulement protection failed on all applicable grounds.

8.On 10 June 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, nor did he request any oral hearing for his application. 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.

9.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.

10.In the Applicant’s case, the Board rejected his claim for the thorough and detailed analysis and reasoning set out in paragraphs 29 - 44 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.

11.Furthermore, the fact is that it has also been established by the Director in his 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, 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.

12.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.

13.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 to grant leave and dismiss his application.

Dated the 7^th day of December 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