Bait Fletcher Jade Besquillo v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1342/2019

[2024] HKCFI 180

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1342 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.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 8 May 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, his application is dealt with on the papers.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.The applicant is a national of the Philippines. He entered Hong Kong as a visitor and was permitted to stay until 12 February 2018. His limitation of stay was extended to be on 14 February 2018. However, he did not depart and had overstayed since 15 February 2018. On 17 April 2018, he was arrested by the police for overstaying. On 18 April 2018 and 20 April 2018 respectively, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by Siegfredo Betita, the Mayor of Carles, and the Philippine police.

5.According to the applicant, he was one of the body guards for the Mayor, responsible for carrying the Mayor’s case. All along, the applicant had no knowledge of the contents therein. One day in January 2017, the case accidently dropped open, revealing the transparent bag with some white powder. The applicant suspected that it was drug. In February 2017, the applicant tendered his resignation to the Mayor as he did not wish to involve in drug trafficking. The Mayor was furious and threatened the applicant with a gun. He also ordered other body guard to attack the applicant as a way to force the applicant to continue his work. The applicant agreed.

6.In March 2017, someone approached the applicant in a night club and asked him the whereabouts of the drugs. It turned out to be a raid against the night club. The police took the applicant to an abandoned building. They interrogated and tortured the applicant for his boss and where the drug came from. They even water boarded the applicant. The applicant lost consciousness. After he woke up, the police were gone. He did not sustain any injuries and thus did not seek medical treatment. Later, the Mayor asked the applicant to hide from the police.

7.In July 2017, the applicant left for Hong Kong. He returned to the Philippines after the trip. The Mayor offered a safe house for the applicant so that he would not disclose any information about the Mayor’s drug dealings.

8.In October 2017, the applicant was summoned to the Mayor’s office. He believed that the Mayor intended to kill him because the Mayor suspected him to be the one who leaked the information to the police. The applicant escaped. He hid in Iloilo city before eventually fled to Hong Kong for protection. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 31 October 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

9.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”).

10.By way of the Director’s Decision, the Director dismissed the applicant’s claim. In elaboration, the Director found that (i) the past events did not substantiate his fears of harm from the Mayor or the Philippine police [12]-[21]; (ii) state protection would be available to him [22]-[29]; and (iii) internal relocation was also a viable option [30]-[32].

The Board’s Decision

11.The applicant appealed the Director’s Decision to the Board. On 26 February 2019, the Board conducted an oral hearing for his appeal, during which he testified with the assistance of an interpreter qualified in the Ilonggo and Tagalog and English languages [18].

12.The Board considered the applicant’s evidence before the Director and the oral testimonies at the hearing [5]-[41]. Having considered the evidence, the Board made the following findings. For matters that were significant to his claim, the Board accepted that the applicant had worked for the Mayor who was renowned to be a corrupted man; that he had discovered the drug in the Mayor’s case; that he had decided to resign because of his unwillingness to involve in drug dealings; that the Mayor was furious about the applicant’s decision, who ordered the assault against the applicant and forced him to continue his work; that the applicant was taken away and physically mistreated by the police after the raid in the night club; that he was confronted by the Mayor who suspected him to be the informant; and that neither the police nor the Mayor had contacted members of the applicant’s family in relation to the applicant [49]-[59].

13.In light of the aforesaid findings in favor of the applicant, the Board proceeded to consider his claim under the grounds. It noted that the applicant was interrogated by the police but he was released without being charged or being given any directions or warnings. Nothing eventful happened after he was released by the police [67]. Meanwhile, he or his family members were not contacted by the Mayor after he stopped working for the Mayor in October 2017 [67]. As a result, the Board refused to accept that the applicant would be subjected to torture by the police upon refoulement [68].

14.In relation to the fear of mistreatment by the Mayor, the Board found that there was a small but real risk that he would suffer serious harm from or on behalf of the Mayor if refouled [69]. However, it also found that internal relocation to a large city outside the Ilolio province of Panay island such as Manila or Cebu [89] was a viable option for the applicant to negate such risk of harm [70]-[75]. Therefore, the Board rejected the applicant’s claim on the ground of Torture risk.

15.For the same reasons, the Board also rejected the applicant’s claim on the remaining grounds and dismissed his appeal.

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

16.The applicant has filed Form 86 dated 20 May 2019 for leave to apply for judicial review of the Board’s Decision.

17.In his affirmation and in support of his application, the applicant said the Board was unfair as it had failed to make a full and proper inquiry of the country of origin information and he was not provided with legal assistance or transaction service and he did not understand the Board’s Decision.

DISCUSSION

18.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).

19.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

20.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.”

21.The Board had, for the reasons given, accepted the facts as alleged by the applicant, but concluded that he will not be subjected to real harm either from the police or from Mayor in Carlies as he may relocate himself if he returns to the Philippines.

22.As to the grounds in paragraph 17, it is only his opinion that the Board was unfair for not making a full enquiry of the COI. The Board had, in the Board’s Decision, made references to the COI. The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178 held:

“22. This Court has repeatedly held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration. We do not find anything amiss arising from lack of legal representation in the process before the Board.”

23.The Court of Appeal in Re: Sharma Poonam [2019] HKCA 804, 19 July 2019 held:

“16. It has been decided in Hong Kong that the high standard of fairness required by law would not entail an interpretation service being made available to an applicant all the time as she may desire: see Re Gurnishan Singh [2018] HKCA 704; Re Gurung Sagar [2019] HKCA 658.”

24.There is no valid ground from the applicant to challenge the Board’s Decision.

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

CONCLUSION

26.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 25^th day of January 2024

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