Matabuena, Mark Diola v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1460/2019

[2024] HKCFI 807

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1460 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 20 May 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision rejecting his non-refoulement claim (“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 38, is a Filipino. He last entered Hong Kong on 31 October 2016 and overstayed since 15 November 2016. He surrendered himself to the Immigration Department on 23 November 2016 and made a non-refoulement claim by written submission on 25 November 2016.

5.According to the applicant, he followed his brother Joseph’s instructions to deliver a bag to his friend in April 2016. By around middle of June or early July 2016, he started to receive phone calls from some unknown numbers asking for Joseph’s whereabouts, which he later known were triad members from the Tao-tao gang. The applicant suspected that he had ignorantly helped Joseph to do a drug deal back in April 2016. One day in August 2016, the applicant was kidnapped by several men armed with guns for nearly an hour, during which the applicant was being assaulted and threatened with death as he was unable to disclose the whereabouts of Joseph. The applicant was scared after the kidnapping and started planning to flee. He first moved to his friend’s place in Laguna and only returned home if necessary. Eventually he fled to Hong Kong on 31 October 2016. The applicant did not maintain any contact with his family since arrival in Hong Kong as he was afraid to be traced by the Tao-tao gang.

6.The applicant did not dare to report the kidnapping to the police as he might be regarded as involved in the drug deal. He also thought the police might be connected to the Tao-tao gang. He considered internal relocation within the Philippines not viable as well given the connections that the Tao-tao gang had in the country.

7.Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 30 November 2017 (“the Director’s Decision”).

The Director’s Decision

8.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”).

9.By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director had doubts about the kidnap incident and the credibility of the applicant [10]-[14]. In any event, even if the claimed incidents were assumed to be true, the Director was of the view that: (i) the low intensity and frequency of past ill-treatment from the Tao-tao gang is indicative of low future risk of harm upon his return to the Philippines [16]-[17]; (ii) state protection will be available to him upon his return [19]-[20]; (iii) internal relocation is viable [18], [21]-[22] and (iv) the applicant’s case failed to meet any of the requirement under BOR 2 and BOR 3 risk [23]-[28], Persecution risk [29]-[33] and Torture risk [34]-[36].

The Board’s Decision

10.The applicant appealed the Director’s Decision to the Board. On 13 March 2019, the Board conducted an oral hearing with an interpreter.

11.Having considered the applicant’s evidence, the Board formed the view that the applicant was not a witness of truth and his claims in relation to the Tao-tao gang were fabricated [98]. There were also significant inconsistencies and contradiction of the applicant’s own evidence [100]-[109]. At paragraph 110 of the Board’s Decision the Board stated:

“For the above reasons, based on the gaps, inconsistencies and other problems with the evidence, having carefully assessed the Appellant’s claims, the Board reject them, both individually and cumulatively, in their entirety.”

12.In light of such findings, the Board concluded that the applicant’s case failed to meet any of the requirement under Persecution risk [2]-[10], [120], Torture risk [11]-[15], [117] or BOR 2 and BOR 3 risk [16]-[20], [118]-[119].

13.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

14.The applicant has filed Form 86 dated 30 May 2019 for leave to apply for judicial review of the Board’s Decision.

15.The applicant has raised the grounds below in support of his application.

(1)  Procedural impropriety: failure to consider the concept of extended state acquiescence.

(2)  Failing to conduct a critical analysis of the relevant country of origin information (“COI”).

(3)  Failing to provide adequate reasons as to why the COI against his appeal was preferred rather than those in his favour.

(4)  Cherry-picking of the COI.

DISCUSSION

16.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).

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

18.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.”

19.For the reasons given above, the Board rejected the applicant’s evidence in relation to the facts of his claim. Those grounds in paragraph 15, supra are only his general comments without any evidence in support. The Court of Appeal in Salim Ahmed alias MD Salim [2020] HKCA 244 held:

“20. … … general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case: Re Mizan Sikder [2019] HKCA 20 and Ibrahim v Simon Russell [2019] HKCA 1327.” See also Re Haider Khalil [2021] HKCA 223 [16].”

20.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

21.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 March 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