Juniller Joel Puti v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1700/2019

[2024] HKCFI 1680

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1700 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 13 June 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 asked for a hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court, a hearing date of 6 May 2014 was fixed for him to appear before the Court.  However, he was absent without prior to notice to the Court.  I shall deal with his application on paper.

The applicant

3.The applicant, aged 51, is a Filipino.  He last arrived in Hong Kong as a visitor on 26 February 2015 and overstayed since 28 February 2015.  He surrendered to the Immigration Department on 11 March 2015 and made a non-refoulement claim on the same day.  The claim was made on the basis that, if refouled, he would be harmed or killed by his creditor (“the creditor”) because he failed to repay the loan.

4.According to the applicant, he worked as a casual worker by selling miscellaneous items on the street.  In August 2013, he met a vendor, who convinced him to open his own store.  The vendor suggested the applicant to borrow some money to startup his business and she would be his partner.  Upon introduction by the vendor, the applicant took out a loan from the creditor.  Thereafter, he handed the money over to the vendor, who subsequently disappeared.

5.Shortly afterwards, the creditor and a man approached the applicant whilst he was selling goods on the street as usual, requesting loan repayment.  When the applicant told them he was unable to pay, the man pointed a gun at his neck, while the creditor threatened to kill him if he failed to repay the loan within the next three months.

6.The applicant was scared and decided to relocate elsewhere within the country.  After around four months, his neighbour told him that someone rode a motorcycle around his house during nighttime.  The applicant was worried that the creditor would find him and thus decided to leave the Philippines in order to save his life.  He left for Singapore on or about 15 February 2014.  As he was unable to find a job there, he subsequently went to Malaysia, Indonesia and Thailand.  The applicant returned to the Philippines in August 2014.  He stayed in different places within the Philippines until he last left the country on 31 January 2015.  Eventually, he arrived in Hong Kong on 26 February 2015.

7.The applicant had never made a report to the police because he did not trust them.  He also considered internal relocation not viable because he did not want to involve others.

8.Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 19 March 2018 (“the Director’s Decision”).

The Director’s Decision

9.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”).

10.By way of the Director’s Decision, the Director dismissed the applicant’s claim.  The Director was of the view that (i) the low intensity and frequency of past ill-treatment from the creditor indicated the risk of harm was not as imminent as claimed [11]-[12]; (ii) state protection would be available to him upon his return [15]-[18]; (iii) internal relocation would be viable [13], [19]-[23] and (iv) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [24]-[29], Persecution risk [30]-[34] or Torture risk [35]-[37].

The Board’s Decision

11.The applicant appealed the Director’s Decision to the Board.  The Board considered that the appeal can be justly determined without a hearing and the case was therefore proceeded on such basis [26]-[27].   

12.The Board noted that there had not been any severe pain or suffering inflicted on the applicant and that the current matter was purely a private money dispute with no state involvement.  Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Torture risk, BOR 2 and BOR 3 risk or Persecution risk

13.The Board therefore 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 20 June 2019 for leave to apply for judicial review of the Board’s Decision.

15.In his affirmation in support of his application and a statement attached to Form 86, the applicant has raised the grounds below.

(1)  He was not given a hearing before the Board.  Nor was he advised to submit written submissions to the Board.

(2)  The lack of credible source of information has resulted in them making groundless speculations that it is safe for him to return back to his country.

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 the Board’s 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.The applicant complained that he was not given a hearing before the Board.  Under the law, the Board was entitled to make its decision of not holding a hearing if the Board, having taken into consideration of all the relevant circumstances, came to a conclusion that it would not be unjust to the applicant[1]. The Board had considered the Court of Appeal’s decision in ST v Betty Kwan and Others CACV 115/2013 [2014] 4 HKLRD 277.  It came to its views:

“27. Further I have considered the general principles and circumstances under which an oral hearing is required as set out in ST v Betty Kwan and Others, to the facts or law which requires an oral hearing to resolve. I am also ever mindful of the potential consequences of my decision. In my view there is no procedural unfairness to the Appellant at all due to the lack of an oral hearing. I proceeded on that basis.”

20.Here, the Board did not raise the issue of credibility of the applicant’s evidence.  Having accepted his evidence, it came to the conclusion that he will not be subjected to any of the applicable risks if he returns to his own country.  On this basis, the Board dismissed the applicant’s appeal.  The Board was entitled to make such finding.

21.The applicant has not been able to show that the Board’s decision not to hold a hearing had caused any unfairness to him.  The fact that the Board did not advise him to make a written submission is not a valid ground because to date, the applicant has not raised any prejudice to him.  He had the chance to make his written submissions in his notice of appeal.  Ground (1) fails.  Ground (2) is only a general assertion without condescending to any evidence in support of it.  This Ground fails too.  There is no valid reason from the applicant to challenge the Board’s Decision.

22.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

CONCLUSION

23.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 9^th day of July 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