Asuncion Rael Cabilis v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1331/2019

[2024] HKCFI 939

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1331 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 6 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 entered Hong Kong as a visitor on 19 February 2015 and traveled to various places around the region (eg Macau and Mainland China).  His last arrival in Hong Kong was on 18 April 2015 and was allowed to stay until 16 May 2015.  However, he did not depart and was arrested by the police on 28 July 2015 for overstaying.  He lodged a non-refoulement claim on 21 September 2015 on the basis that he would be harmed or killed by the following groups: (i) members of the Vargas family due to his dispute with them; and (ii) members of the New People’s Army (“NPA”) as he refused to join them.

5.According to the applicant, his trouble with the Vargas family began in or around 2008 when he opposed to a mining operation that one of the member of the Vargas family supported (ie Congressman Florencio L Vargas).  Congressman Vargas informed him that millions of Pesos were already invested in the project and it would proceed regardless of his objection.  In November 2009, he was accused of killing two security guards at the mining site and he believed it was Congressman Vargas’ doing.  He was severely beaten and starved whilst being detained by the police station.  Upon his release, he further led another protest against the mining project in March 2010 and shortly thereafter, Congressman Vargas sent a death threat to the applicant.  As the national election was held in October 2010, he further led campaigns against the Vargas family.  Because of this, he received death threats from the daughter of Congressman Vargas (ie Baby Aline Vargas Alfonso).  When Congressman Vargas won the election, the applicant fled his hometown in fear of retaliation. Congressman Vargas died in September 2011, but his family accused the applicant of causing his death.  As he felt no longer safe in the Philippines, he initially fled to Qatar and subsequently to Hong Kong.  Details of his claim set out at [6] of the Notice of Decision dated 27 February 2018 by the Director (the “Director’s Decision”).

6.As for his fear stemming from the NPA, he admitted he had been associated with the NPA between 2009 and 2012. However, he did not participate in their activities in the Philippines.  Initially he was approached by the group in 2009 but he refused to join them and instead became their recruiter. He stopped recruiting in 2012 after he was informed by his neighbor that the police were searching for him as the recruitment exercise was illegal.  He verily believed that the two security guards killed in the mining site was also related to the NPA.  In any event, he told the Director that he feared that NPA was still looking for him.

The Director’s Decision

7.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”).

8.By way of the Director’s Decision, the Director dismissed the applicant’s claim.  In elaboration, the Director found that: (i) there were numerous credibility issues regarding the applicant’s claim, such as the date of the election which he asserted was held in October 2010 but based on credible COI, it was held on 10 May 2010 [19]; (ii) there were also internal inconsistencies within his claim such as his protest against the Vargas family but never made any complaint to the Philippine authority [21], the conduct of which “rendered the centerpiece of [the applicant’s] case faltered” [22]; (iii) as for his fear of the NPA, the risk was found to unlikely to materialize as there was no sign the NPA persistently had any interest in him; (iv) state protection would be available [36] – [42]; and (v) internal relocation alternatives were available and reasonable [43] – [ 47]. 

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board.  On 7 September 2018, the Board conducted an oral hearing for his appeal, during which he elected to give evidence and clarified his case to the Board [33].

10.The Board scrutinized the applicant’s claim [34] – [47] and found there was no basis to challenge the Director’s Decision and the conclusions therein (ie the alleged events such as torture by the police or the campaigning against Congressman Vargas had never occurred; and the applicant’s purpose to come to Hong Kong was not to seek non-refoulement protection) [61].  Even on the assumption that his version of events was true, the Board still found the risk of harm from both the Vargas’ family and the NPA would be low [63].  The Board held that given the lapse of time, there was no evidence to indicate the NPA still harbor any interest in the applicant and in any event, the NPA never inflicted any harm or ill-treatment against him despite his refusal to join them [64]. As for the threat from the Vargas family, there was no direct abuse from the Vargas family and Baby Vargas’ threats were only made verbally on one occasion [65].  In conclusion, the Board accepted the Director’s analysis and made its own additional points regarding the evidence, which ultimately did not affect the Board’s findings against the applicant [71] – [90].

11.In assessing the relevant grounds of non-refoulement protection, the Board found there was no state involvement, as there was no evidence of the Vargas family or the NPA being public officials [96].  There was objective and credible COI that there would be sufficient assistance to the applicant in the event of a real and personal risk to him [98] and [99].  There were further internal relocation options, in light of the fact that his second family is already living safely in Pangasinan, another region in the Philippines, which he can relocate to [105] – [107].

12.In light of the above, the Board dismissed his appeal and confirmed the Director’s Decision.

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

13.The applicant has filed Form 86 dated 17 May 2019 for leave to apply for judicial review of the Board’s Decision.

14.In his affirmation in support of his application, the applicant said he is not satisfied with the Board’s Decision, without raising any specific reason.

DISCUSSION

15.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).

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

17.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.”

18.The Board, for the reasons given in paragraphs 10 and 11 above, found that the applicant’s claimed risks were unfounded. There is no valid ground from the applicant to challenge 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