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

CACV 131/2024, [2024] HKCA 694

On Appeal from [2024] HKCFI 853

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 131 OF 2024

(ON APPEAL FROM HCAL NO 1378 OF 2019)

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

1.On 8 April 2024, the Applicant, acting in person, filed a notice of appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 3 April 2024 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 9 May 2019. The Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 16 November 2018.

BACKGROUND

2.The Applicant is a national of the Philippines. He entered Hong Kong as a visitor on 26 June 2015, and overstayed after the expiry of his limit of stay. He was arrested by the police on 10 August 2015. On 12 August 2015, he raised a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by his former girlfriend and her family due to the former girlfriend’s affairs with some other men. Details of the Applicant’s claim have been summarised by the Judge at §§1-5 of the CALL-1 Form.

3.By a Notice of Decision dated 16 November 2018, the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds: the risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].

4.The Applicant appealed the Director’s decision to the Board. On 9 May 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s decision (“the Board’s Decision”).

5.The Judge summarised the Board’s Decision at §§9 and 10 of the CALL-1 Form, as follows:

“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].”

THE JUDGE’S DECISION

6.On 21 May 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.

7.On 3 April 2024, the Judge refused to grant leave to the Applicant to apply for judicial review, for the following reasons:

“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.”

THIS APPEAL

8.In his Notice of Appeal dated 8 April 2024, the Applicant put forward the following ground(s) of appeal, namely, that his life would be in grave danger if he was refouled, and he would be harmed or killed by his former girlfriend and her family.

9.On the same date, the Applicant consented to his appeal being disposed of on paper by the Court without an oral hearing.

10.In his written submissions dated 22 April 2024, the Applicant repeated his fear of being refouled back to his home country, and stated that he was sure that he would not get any protection from the government or the police in his home country. He maintained that internal relocation was not an option for him. He also said that he did not have any knowledge of Hong Kong law.

DISCUSSION

11.The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14. In particular, in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed. The Court’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(6)).

12.Further, the assessment of evidence, country of origin information, 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: Re Kartini [2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

13.The Applicant has failed to identify or show any error in the Judge’s decision of 3 April 2024, or raise any viable ground of appeal against the Order.

14.The Applicant’s appeal has no merits, and is dismissed.

The Applicant, acting in person