Mallare Lauro Magbitang v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1307/2019

[2024] HKCFI 930

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1307 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 7 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 is a national of the Philippines.  He last entered Hong Kong as a visitor on 9 July 2015 and, after an application for extension of stay, was required to depart on or before 24 July 2015.  He had overstayed since 25 July 2015.  On 14 October 2015, he surrendered to the Immigration Department.  On 13 March 2017, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by the drug syndicate for his relationship with his late boyfriend August Lirios (nicknamed as “Togo”).

5.According to the applicant, he started dating Togo in June 2015.  Togo used to work for a drug syndicate.  However, he told the applicant that he wished to quit.  He also said that someone called Magno in the syndicate knew about the applicant.  One day in early June 2015, Togo was killed and the applicant believed that Magno was the murderer.  In light of Togo’s previous reminder, the applicant feared that he was involuntarily involved in the syndicate and would also be killed.  Out of fear, the applicant fled to Hong Kong for protection.  While he was in Hong Kong, from 2016 to 2017, he had received messages from unknown numbers with death threats.  Details of his claim are set out at paragraph 6 of the Notice of Decision dated 30 October 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) there was no reliable evidence that the applicant was targeted by Magno or the alleged drug syndicate [12]-[13]; (ii) state protection would be available to him [14]-[15]; and (iii) internal relocation was a viable option [16].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 11 March 2019, the Board conducted an oral hearing for his appeal, during which he was assisted by an interpreter [12].

9.The Board recapped the applicant’s claim [13]-[28] and summarized his oral testimonies [58]-[87].  Having considered the evidence, the Board made the following findings.  At the outset, it accepted the applicant’s homosexuality and his relationship with Togo [93]-[95].  However, it refused to accept that the applicant was privy to any internal procedures and processes of the syndicate or the details of the working of the syndicate [95].  While the Board accepted that Togo had provided for the applicant financially, it refused to accept that this aspect would make the applicant a target of the syndicate [96]. 

10.As to the murder of Togo, the Board accepted the applicant’s version of events [97]-[100].  Yet, having evaluated the past events, the Board rejected the applicant’s assertion that he was of adverse interest to the syndicate [101]-[104].  Additionally, the Board found that he had delayed in seeking protection [105] and that the Philippine government had no adverse interest against the applicant [106].  It further rejected the applicant’s claimed death threats received via telephone [107] and his claim that his brother was attacked because of him [108]. 

11.As to his claimed risk of harm from police or hitman hired by the syndicate, the Board rejected such claim after considering all the available information [110]-[111].  It also considered the applicant’s claimed fear of harm for being a homosexual and found that the alleged discrimination and mistreatments by the applicant would not warrant a non-refoulement protection [112]-[115].  In any event, internal relocation and state protection were both available to the applicant [119]-[128].

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

12.The applicant has filed Form 86 dated 15 May 2019 for leave to apply for judicial review of the Board’s Decision.

13.In his affidavit in support of his application, the applicant annexed it with the hearing bundle without raising any specific ground.

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.The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded.  There is no valid ground from the applicant to challenge the Board’s Decision.

18.There is no reason that the Court should interfere with the Board’s Decision.

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

CONCLUSION

20.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 11^th 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