Pampag Rey Paccial v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2614/2019

[2025] HKCFI 754

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2614 OF 2019

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 3 September 2019 of the Torture Claims Appeal Board 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. He appeared before the Court on 12 February 2015.

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 44, is a national of the Philippines. He arrived in Hong Kong and was permitted to remain as a visitor, but he overstayed since 14 February 2017. The applicant surrendered to the Immigration Department on 28 March 2017 and subsequently lodged his non-refoulement claim. The applicant’s claim was based on his fear of being harmed or killed by a man named Jesry Palmares (“Palmares” )and his team because of a personal dispute.

5.According to the applicant, Palmares was the mayor of the city of Passi. He promised the applicant 100,000 pesos for helping him for re-election. The applicant did not receive any payments and so he and his 2 friends switched to support another candidate who later won the election. After the oath taking ceremony, the applicant claimed that the bodyguards of Palmares shot at them. He was not hit and managed to escape. But his friends were killed in the attack. He considered that his enemies were powerful, therefore he came to Hong Kong to save his life. Details of his claim are set out at paragraph 7 of the Notice of Decision dated 1 November 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

6.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”).

7.By way of the Director’s Decision, the Director assessed the applicant’s claim and dismissed his claim. In summary, the Director found that: there were no substantial grounds to believe that the claimed future risk of harm was real and foreseeable [11-12]; state protection was available [13]; and internal relocation alternatives were available and reasonable [14].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 1 March 2019, the Board conducted an oral hearing for his appeal.

9.Having considered the evidence, the Board found that the applicant was not a credible witness and it did not accept that there was a real risk of harm against him if he was refouled; in particular, his evidence was not supported by the Country of origin information in relation to when the election were held, who were the candidates, and who won the election [70-72, 76-81, 89-90, 93-95, 103-105]. In conclusion, the Board held that the applicant’s claim failed under all applicable grounds. It therefore dismissed his appeal and confirmed the Director’s Decision.

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

10.The applicant has filed Form 86 dated 9 September 2019 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, the applicant did not raise any specific ground to challenge the Board’s Decision.

DISCUSSION

12.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).

13.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 the Board did not believe his evidence and he wanted the Court to review it.

14.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.”

15.The Board, for the reasons given above, found that the applicant’s evidence was incredible.

16.There is no valid ground from the applicant to challenge the Board’s Decision.

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

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

DISPOSITION

19.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.