Tagub Winfred Magtoto v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2217/2019

[2024] HKCFI 3303

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2217 OF 2019

_____________

BETWEEN

_____________

_____________

JUDGMENT

_____________

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 29 July 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. He appeared this Court on 11 November 2024.

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, aged 51, is a Filipino. He last arrived in Hong Kong as a visitor on 22 October 2011 and had overstayed since 28 October 2011. The applicant was arrested by the police on 18 December 2013 and he made a non-refoulement claim on 20 December 2013. The claim was made on the basis that, if refouled, he would be harmed or even killed by the Muslims in Mindanao (“Mindanao Muslims”) because he had supported and worked for the then Christian mayor of Mindanao (“the mayor”).

5.According to the applicant, he was introduced to the mayor in around 2000 and subsequently became one of his six bodyguards. In around 2006/2007, the mayor was assassinated supposedly by a Muslim. Around two years after the death of the mayor, the applicant had an argument with a Muslim due to a property dispute. In 2009, the applicant relocated away from Mindanao after learning that two of the mayor’s bodyguards went missing while one was shot dead. In around 2010/2011, after being told by one of the mayor’s bodyguards that a gunman tried to get him, the applicant felt unsafe and decided to leave the country. Eventually, he left the Philippines on 16 September 2011.

6.While in Hong Kong, the applicant was told by his father-in-law that someone had been looking for him. He was of the view that he could not seek protection from the authorities because he had no money. He also considered internal relocation not viable because the Muslims would have the means to find him.

7.Details of the story of the applicant can be found in paragraph 6 of the Director’s Decision dated 15 April 2015 (“the Director’s 1^st Decision”).

The Director’s Decisions

8.The Director considered the applicant’s claim in relation to the following risks:

a. 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”);

b. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”);

c. 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”); and

d. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”).

9.By way of the Director’s 1^st Decision, the Director dismissed the applicant’s claims on BOR 3 risk, Torture risk and Persecution risk. The Director found that: (i) the absence of past ill-treatment received by the applicant indicated a small future risk of harm upon his return to the Philippines [13]; (ii) it was questionable whether the Mindanao Muslims would still have adverse interest against him given the lapse of time [13]; (iii) state protection would be available [14] and (iv) internal relocation would be viable [15].

10.In the Notice of Further Decision dated 11 April 2017, the Director also rejected the applicant’s claim on BOR 2 risk (“the Director’s 2^nd Decision”) for the reason that there was no evidence to show that his right to life under BOR 2 would be violated upon his return.

The Board’s Decisions

11.The applicant appealed the Director’s 1^st Decision to the Board. On 3 June 2016, the Board conducted an oral hearing.

12.The Board found the account given by the applicant unconvincing and lacked credibility [36]. Although it was accepted that the mayor was assassinated possibly by a Muslim, the Board was not satisfied that the applicant had ever been threatened or targeted by the Mindanao Muslims [37]. The Board considered that the applicant came to Hong Kong simply to visit his wife and did not find him to be at risk upon return to the Philippines [38]. His delay in applying for non-refoulement protection also damaged his credibility [39]-[40].

13.The Board found the applicant’s claim was based on bare assertions/speculation and it was not accepted that he would face any risk of harm upon return to the Philippines [42]-[44]. Based on such findings, the Board rejected the applicant’s claim on Torture risk, BOR 3 risk and Persecution risk [21]-[28], [45]-[48].

14.The Board therefore dismissed the applicant’s appeal and confirmed the Director’s 1^st Decision (“the Board’s 1^st Decision”).

15.The applicant also appealed the Director’s 2^nd Decision to the Board. The Board considered that the appeal could be justly determined without a hearing because there was no issue that needed clarification [12]. The appeal was therefore proceeded on such basis.

16.Based on the findings in the Board’s 1^st Decision, the Board considered that there was no evidence indicating that the applicant’s right to life would be at risk upon return to the Philippines [14]-[19]. His appeal was therefore dismissed and the Director’s 2^nd Decision was confirmed (“the Board’s 2^nd Decision”).

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

17.The applicant has filed Form 86 dated 5 August 2019 for leave to apply for judicial review of the Board’s Decision.

18.In his affirmation in support of his application, the applicant raised the grounds below to challenge the Board’s Decision. He referred to the Director, which I shall take as his grounds against the Board as well.

(1) Procedural impropriety: he was not informed that the country of origin information (“COI”) would be relied upon in the assessment of his case; the COI was cherry picked to his detriment;

(2) Irrationality: failed to consider state acquiescence.

(3) Unreasonableness: the assessment was based on false logic as the threat of the extremists of killing him if he returns to his country was not properly assessed. The extremists are powerful and aggressive.

DISCUSSION

19.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).

20.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said he has disclosed his facts to the Board. But the Board did not consider the evidence well enough.

21.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.”

22.The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded. Those grounds under paragraph 18 are his bare assertions and general comments without any evidence in support. They are not valid to challenge the Board’s Decision.

23.There is no reason that the Court should interfere with the Board’s finding of the facts.

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

DISPOSITION

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

The applicant appeared in person.