Pimentel Benedicto Jr Nisperos v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1378/2019

[2024] HKCFI 853

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1378 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 9 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 allegedly entered Hong Kong as a visitor on 26 June 2015 but overstayed. He was arrested by the police on 10 August 2015 and raised a non-refoulement on 12 August 2015 on the basis that, if refouled, he would be harmed or killed by his former girlfriend (Melanie Mancenido) and her family due to Melanie’s affairs with other men.

5.In brevity, the applicant met Melanie in 2008 while they were working in Taiwan and together they had a child on 25 May 2009 (this child was illegitimate as the applicant was married at the material time). He claimed that during his relationship with Melanie, he was jealous of her for having amorous relations with other men. When he confronted her upon discovery of those affairs on social media, she admitted her promiscuity. When he could no longer tolerate such behavior in 2015, he complained to Melanie’s mother but she threatened to kill him. He thought Melanie would attempt to kill him. When Melanie’s brother was informed of his complaint against Melanie, he came to the applicant’s home with a knife and made death threats against him. Despite these threats, the applicant was not actually harmed or attacked and was able to arrive in Hong Kong in 2015. Details of his claim are set out at [6] of the Notice of Decision dated 16 November 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

6.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”).

7.By way of the Director’s Decision, the Director dismissed the applicant’s claim. In elaboration, the Director found that: (i) the absence of ill-treatment from Melanie and her family is indicative of an unlikelihood of future risk of harm if refouled, as the applicant confirmed he was never physically harmed or attacked notwithstanding the verbal threats [12]; (ii) the risk of harm was not as real and imminent as asserted as there was no indication that Melanie and her family wished to cause actual harm against him [13]; (iii) state protection was available [15] and [16]; (iv) and internal relocation was also available and reasonable [17].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 19 March 2019, the Board conducted an oral hearing for his appeal, during which he had the assistance of an interpreter [41].

9.The Board recapped the applicant’s background, the relevant legal principles in respect of non-refoulement protection and his claim [1] – [38]. Having considered all the evidence, the Board found the applicant’s claim to be nothing more than a fabrication and rejected the same in its entirety [43]. There were several factors which led to the Board’s adverse finding, such as: (i) the applicant’s allegations that Melanie would poison him and her mother would take a knife to chop him up [45] – [47]; (ii) he stated on record that he was in fact not afraid of Melanie’s brother threatening him with a knife [48]; (iii) he failed to produce any photos or evidence relating to the alleged affairs Melanie was involved in [49]; and (iv) there was inconsistent evidence regarding the time of the threats received from Melanie’s mother and brother [50] and [51]. In any event, the Board found the applicant’s evidence to be unreliable and at times, even absurd [53] – [55].

10.In assessing the applicable grounds of non-refoulement protection, the Board held there was no involvement of the state [81] and state protection was available upon considering credible COI [84]. The Board further found that internal relocation was viable given the lapse of time of the alleged incident in 2015 and the applicant had over a decade of work experience [71] – [75].

11.For the above reasons, the Board rejected the applicant’s claim and dismissed his appeal.

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

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

13.In the applicant’s affidavit in support of his application, the applicant said the Board disregarded his dangerous situation.

DISCUSSION

14.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).

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

16.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.”

17.For the reasons given in paragraph 9, the Board rejected the applicant’s evidence. It further found that if he returns to the Philippines, he would have state protection and he may relocate to live in other places in the Philippines. There is no valid ground from the applicant to challenge the Board’s Decision.

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

CONCLUSION

19.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 3^rd day of April 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