Togle Jun Ernie Diaz v. Torture Claims Appeal Board

HCAL 1890/2019

[2024] HKCFI 339

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1890 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 Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 46-year-old national of the Philippines who arrived in Hong Kong on 26 November 2007 as a visitor with permission to remain as such up to 10 December 2007 when he did not depart and instead overstayed, and was arrested by police on 23 May 2009. After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to the Philippines he would be harmed or killed by his creditor over his outstanding debts, 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 General Mariano Alvarez Cavite, the Philippines. After leaving school he worked in various odd jobs in his home district, got married and raised a family with 2 children.

3.In 2007 he started his own business running a small cooked food stall with the help of a loan from a friend known to be involved in illegal drugs activities.

4.Unfortunately his business did not fare well and was eventually closed down after several months, and when he was unable to repay his loan, his creditor demanded that he should instead sell drugs for him as compensation, to which the Applicant reluctantly agreed, but after he was given a supply of drugs for sale, he decided he could not go through it and just threw away the drugs and went into hiding from his creditor.

5.However, when he heard that his creditor had sent men looking for him everywhere with threats to kill him, the Applicant became fearful for his life and on 23 July 2007 departed the country for Hong Kong, but on 12 September 2007 he decided to return to the Philippines in the hope that his creditor would not really harm him due to their past friendship.

6.Upon returning to the Philippines, as he was still apprehensive of his creditor’s threats, the Applicant did not return to his home and instead took shelter in his sister’s place in Oriental Mindoro, but one day in October 2007 he was abducted by his creditor and his followers to their place where his creditor threatened to shoot him in the head, and then ordered his men to beat him until he passed out. Eventually he managed to make his escape and fled to Manila to hide in a friend’s place.

7.With his friend’s help, the Applicant on 26 November 2007 departed the country again for Hong Kong where he subsequently overstayed, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Supplementary Claim Form (“SCF”) on 22 October 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

8.By a Notice of Decision dated 29 November 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”).

9.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of him being harmed or killed by his creditor and followers upon his return to the Philippines as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of to seriously harm or kill him other than to press him to repay his loan and to return the drugs, that in any event it was a private monetary dispute 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 105 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 his creditor to locate him.

10.On 4 December 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 9 May 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 3 July 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

11.In its decision the Board found material inconsistencies and discrepancies in the Applicant’s claim that it doubted his claim of fear of harm from his creditor that caused him to leave his home country to come to Hong Kong for protection, and that in any event even if his claimed risk were real that it arose from a private monetary dispute between him and his creditor without any official involvement that state or police protection would be available to the Applicant upon his return to the Philippines 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.    

12.On 8 July 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)  Procedural impropriety in that the Board failed to properly apply para 2 of the UN Committee Against Torture General Comment No 2 whereby satisfaction of a national state obligations to conduct sufficient due diligence requires that reforms and means of relief introduced must be effective in any event, but that the Board only focused on whether such reliefs showed merely signs of positive improvement;

(2)  Procedural impropriety in failing to conduct sufficient inquiry into the relevant COI conditions;

(3)  Procedural impropriety/irrationality in failing to give reasons for its assessment of lack of BOR 3 risk and/or sufficient basis to support a conclusion of lack of BOR 3 risk;

(4)  Error/misdirection in law in failing to take into account the consideration of psychological strain and threats to the Applicant personally or threats to kill him made directly to the Applicant;

(5)  Procedural impropriety in failing to consider the Applicant’s fear that his enemies would still harm him upon refoulement; and

(6)  That there was no sufficient basis to conclude that the Applicant and his family members would not be at risk of being subjected to torture and/or CIDTP upon refoulement.

13.These are however all just some bare and vague assertions of the Applicant without any relevant or necessary details or particulars or elaborations as to how they would apply to his case or in what way did the Board fail to conduct proper or sufficient inquiry of his claim or the relevant COI or to give reasons for its assessment. None of these assertions were properly elaborated by the Applicant with the necessary or relevant details or particulars in support that I do not find any of them reasonably arguable for his intended challenge, 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 merits in his intended application either.   

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 fact is that it has been correctly established by both the Director and the Board in their decisions that the risk of harm in his 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.

16.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.

17.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, I therefore refuse to grant leave and accordingly dismiss his leave application.

Dated the 30^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