Berja Azarias Ayo v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1373/2019

[2024] HKCFI 528

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1373 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 16 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, I shall deal with his application on paper.

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, aged 54, is a Filipino. He last entered Hong Kong on 8 June 2012 and overstayed since 23 June 2012. On 11 August 2012, he was arrested by the police. The applicant made a torture claim on 13 August 2012, which the Director rejected on 31 October 2012. No appeal against this decision was made and the limitation period for appeal had lapsed after 14 November 2012. The applicant made a further non-refoulement claim on 3 December 2013 on all applicable grounds other than torture risk[1]. The claim was made on the basis that, if refouled, the applicant would be killed by Benjamin Decena (“Mr Decena”), the former mayor of Bula, because he was the campaign leader of his political opponent during the mayoral election.

5.According to the applicant, in the mayoral election of Bula held in May 2010, he was the campaign leader of Rolando Canet (“Mr Canet”), the opponent of Mr Decena. Mr Canet lost the election to Mr Decena, so that the latter continued to be the mayor. Preparation work for the 2013 mayoral election started in March 2012 and the applicant again became the campaign leader for Mr Canet.

6.On 10 April 2012, two armed men came to the applicant’s house and threatened him to stop supporting Mr Canet. Although the two men did not disclose their identities, he believed that they were sent by Mr Decena. The applicant reported the incident to the village chief. A week later, he travelled to Manila and resided there with his siblings. As the applicant was still afraid of being located, he decided to leave Philippines. Eventually he arrived in Hong Kong on 8 June 2012.

7.The applicant claimed that during the 2017 mayoral election campaign, an unknown man attempted to severely injure or kill his friend, who replaced him as the campaign leader, by gunshot. The applicant believed that the unknown man worked for Mr Decena. In the end, Mr Decena lost the 2017 election and was no longer the mayor. However, the applicant still believed that he was being targeted because his role as the campaign leader against Mr Decena was so deeply rooted.

8.The applicant considered internal relocation within the Philippines not viable because Mr Decena could still locate him. He had never reported the matter to the police, but only to his village chief.

9.Details of the applicant’s story can be found in paragraph 7 of the Director’s Decision dated 4 October 2018 (“the Director’s Decision”).

The Director’s Decision

10.The Director considered the applicant’s claim in relation to the following risks:

a.  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”);

b.  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

c.  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”).

11.By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director noted that Mr Decena did not take part in the 2013 Bula mayoral election. Also, he lost the mayoral election held in 2016 rather than in 2017. In any event, given that Mr Decena was no longer the mayor and the applicant was no longer the campaign leader of his opponent, the Director considered that the claimed threats by the applicant should no longer exist [13].

12.Furthermore, even if the account given by the applicant were true, the Director was of the view that: (i) the low intensity and frequency of past ill-treatment from Mr Decena is indicative of a low future risk of harm upon his return to the Philippines [14]-[15]; (ii) state protection will be available to him upon his return [17]-[18]; (iii) internal relocation is viable [16], [19]-[21] and (iv) the applicant’s case failed to meet any of the requirement under BOR 2, BOR 3 risk [22]-[27] or Persecution risk [28]-[31].

The Board’s Decision

13.The applicant appealed the Director’s Decision to the Board. On 25 January 2019, the Board conducted an oral hearing with the assistance of an interpreter.

14.The Board found that the applicant was unable to provide any detail in relation to the core elements of his own account. His evidence was also inconsistent with that provided to the Director. The Board therefore formed the view that the applicant was not a witness of truth and that no credence could be attached to any of his claims [25]-[34]. In light of such findings, the Board concluded that the applicant’s case failed to meet any of the requirement under Persecution risk [35]-[37], BOR 2 or BOR 3 risk [38].

15.For the above reasons, the Board dismissed the applicant’s appeal and confirmed the Director’s decision.

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

16.The applicant has filed Form 86 dated 21 May 2019 for leave to apply for judicial review of the Board’s Decision.

17.In his affirmation in support of his application, the applicant said he disagrees with the Board’s Decision without setting out any specific ground.

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 the Board’s 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.For the reasons given by the Board as set out in paragraph 14, the Board disbelieved the applicant’s evidence and it further found that state protection and internal relocation are viable options for him.

21.The applicant has raised no valid reason to challenge the Board’s Decision.

22.There is no reason that the Court should interfere with the Board’s finding of the facts. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

23.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 16^th day of February 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