Dimaculangan John Abobo v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
|
HCAL 2235/2019 [2025] HKCFI 147 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 2235 OF 2019 _____________
_____________
_______________ J U D G M E N T _______________ THE APPLICATION 1.The applicant applies for leave to apply for judicial review of the Notice of Decision of the Director dated 18 May 2018 (“the Director’s Decision”), which was superseded by the Decision dated 24 July 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the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 did not ask for a hearing. 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, the Director of Immigration is the interested party, and the decision relief is sought is the Board’s Decision. The applicant 4.The applicant, aged 47, is a national of the Philippines. He came to Hong Kong on 2 June 2017 as a visitor and was allowed to stay until 16 June 2017. He overstayed and surrendered to the Immigration Department on 27 June 2017, He lodged his non-refoulement claim by written submissions dated 28 August 2017 and 13 September 2017. 5.According to the applicant, he was a barangay councilor, working under the leadership of Village Chief, Mr. Ariel Magtibay. In 2016, President Rodrigo Duterte issued administrative orders relating to Operation Tokhang, aiming at eradicating the use and selling of illegal drugs. Mr Ariel Magtibay instructed him to compile a list of drug users and suspected drug peddlers in his village. He followed the instructions. Around the first week of May 2017, he received a phone call telling him that he would kill him because of the list he submitted. He had no means to locate or identify this person. Fearing for his safety, he took his friend’s advice and came to Hong Kong. 6.Details of the applicant’s story can be found in paragraph 7 of the Director’s Decision dated 18 May 2018 (“the Director’s Decision”). The Director’s Decision 7.The Director considered the applicant’s claim in relation to the following risks (“the applicable risks”):
8.By way of the Director’s Decision, the Director rejected his claim on the applicable risks for the reasons that (i) the probability of being harmed or killed upon his return to the Philippines was low [18]; (ii) state protection would be available [20]-[21]; and internal relocation would be viable [22]-[23]. The Board’s Decision 9.The applicant appealed the Director’s Decision to the Board. On 15 May 2019, the Board conducted an oral hearing. The applicant was represented by a duty lawyer and the Director was represented by a government counsel. 10.Having considered the evidence, the Board dismissed his appeal for the reasons that the applicant’s evidence was inconsistent and unreliable and his story of compiling a list of drug abusers and drug peddlers and the phone threat were rejected, which the Board found to be fabrication for his claim. 11.For the reasons above, the Board dismissed the applicant’s appeal and confirmed the Director’s Decision. Application for leave to apply for judicial review of the Board’s Decision 12.The applicant has filed Form 86 dated 6 August 2019 for leave to apply for judicial review of the Board’s Decision. 13.In his affirmation in support of his application, the applicant did not raise any specific ground to challenge the Board’s Decision. 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 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). 15.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. 16.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
17.Both parties were legally represented before the Board. The Board was legally assisted to make a fair decision on the appeal. The Board’s Decision contains a record of the proceedings, which is comprehensive, with anxious examination and rigorous examination of the facts of the claim. 18.The applicant has not raised any valid reasons to challenge the Board’s Decision. 19.The applicant therefore fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision. DISPOSITION 20.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 was unrepresented. | |||||||||||||||||||||||||||
Cases cited in this judgment
Boimin Sunarti Alias Sunarti v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Yulianah v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Hussain Anwar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Nguyen Xuan Truong v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Najeeb Rehman v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Bui Linh Trang v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Nguyen Xuan Thieu v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Setiawan Agus v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Ali Sheikh Asgar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Alam Mustak v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Sk Wasim v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Taufique Ahmad v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Ramgiri Nagesh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Rusdiantoro Andi Prastyo v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Nguyen Ba Luong v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Dang Thi Tam v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Ningsih Yoje v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Gamlath Mohottige Hemamali Wasantha Jayampathie Gamlath v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Atikah Nining v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Ardiana Ayu v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Other judgments that cite this case
Further hearings and rulings under HCAL 2235/2019