Balbalin Denver Anthony Manganip v. Torture Claims Appeal Board
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HCAL 1017/2020 [2024] HKCFI 873 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1017 OF 2020
Application for Leave to Apply for Judicial Review Following:
Order by Deputy High Court Judge Bruno Chan: The application for leave to apply for judicial review be dismissed. Observations for the Applicant: 1.The Applicant is a 30-year-old national of the Philippines who arrived in Hong Kong on 17 January 2019 as a visitor with permission to remain as such up to 31 January 2019 when he did not depart and instead overstayed, and some 2 ½ months later on 17 April 2019 he surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if he returned to the Philippines he would be harmed or killed by his paternal uncle over their personal dispute. He was subsequently released on recognizance pending the determination of his claim. 2.The Applicant was born and raised in Village Batuang, Itogaon Municipal, Benguet Province, the Philippines. After leaving school he worked in various jobs in his home district to make his living. 3.The Applicant however did not get along well with his paternal uncle who also lived in the same village and who disliked him for being homosexual and for bringing bad influences on his uncle’s sons. 4.There were illegal mining activities in his home village that the Applicant was concerned of causing risky conditions to the villagers, and after one occasion in November 2018 when he overheard a conversation between his uncle and his associates which implicated his uncle in such illegal mining activities, the Applicant reported the matter to the village head for investigation which caused his uncle to become furious about it. 5.One night while he was on his way home from work, the Applicant was attacked by several unknown men with knives and other weapons that he suffered severe injuries but was saved by his colleagues who intervened in the assault that those men then fled from the scene. 6.As he suspected that those men were sent by his uncle to kill him, the Applicant therefore fled to Quezon to take shelter in a cousin’s place, and later upon his cousin’s advice to save himself by leaving the country, the Applicant on 17 January 2019 departed the Philippines for Hong Kong and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 12 September 2019 and attended screening interview before the Immigration Department with legal representation. 7.By a Notice of Decision dated 31 October 2019 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), 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”). 8.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his uncle upon his return to the Philippines as low due to the low intensity and frequency of past ill-treatment from his uncle, that there is no evidence that those unknown assailants were sent by his uncle to kill him other than the Applicant’s own speculation, that in any event it was a private personal dispute between him and his uncle 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 uncle to locate him. 9.On 7 November 2019 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 10 March 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 22 May 2020 his appeal was dismissed by the Board which also confirmed the Director’s decision. 10.In its decision the Board found material inconsistencies discrepancies and implausibility in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from his uncle over their disputes that caused him to leave his country to come to Hong Kong to seek protection, that there was no reliable evidence of any real intention of his uncle to seriously harm or kill him other than his own speculations, and that his credibility was further undermined by his failure to raise his claim upon first arriving in Hong Kong until some 2 ½ months later that it rejected his claim and concluded that there is no real risk that he would face any of the proscribed forms of harm should he return to the Philippines that his claim for non-refoulement protection failed on all applicable grounds. 11.On 27 May 2020 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for relief was given in his Form or his supporting affirmation of the same date to which he just attached a copy of the decision but without putting forth any proper ground for his intended challenge, 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. 12.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. 13.In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 63 – 117 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. 14.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 even 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. 15.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. 16.Moreover, the Applicant recently on 19 February 2024 filed an affirmation requesting to withdraw his application as all his problems have been solved that it is now safe for him to return to his home country. 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, and in view of his latest confirmation that it is safe for him to return to his home country, I accordingly dismiss his leave application. Dated the 26th 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
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