Padilla Jonie Jr Rosel v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2978/2019

[2025] HKCFI 1878

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2978 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 oral submissions by the Applicant in open court;

Order by Deputy High Court Judge To:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.This is the Applicant’s application by Form 86 filed on 10 October 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 12 September 2019 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 6 December 2017 (the “Notice”), refusing his application for non-refoulement protection.

Background

2.The Applicant is a national of the Republic of Philippines.  He entered Hong Kong on 27 January 2006 as a visitor.  Since then, he travelled between Hong Kong and Shenzhen 13 times and eventually entered Hong Kong for the last time on 2 June 2006.  He overstayed since 8 June 2006.  He was arrested by the airport police on 19 June 2006 and referred to the Immigration Department.  He made a torture claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the “Torture Claim”) on 22 June 2006.  His Torture Claim was rejected by the Director on 17 June 2013.  He did not appeal the Director’s decision.  That decision is final.

3.He then made a non-refoulement claim under the Unified Screening Mechanism (the “USM”) by written representation dated 24 September 2013.  His USM claim was assessed on all applicable grounds under the USM other than Torture Risk ground (which had been determined under his Torture Claim), namely: BOR 2 Risk^[1], BOR 3 Risk^[2]; and Persecution Risk^[3]. His claim was rejected by the Director’s Notice.  His appeal against the Notice was dismissed by the Board’s Decision.  He now applies for leave to apply for judicial review of that Decision.

The Applicant’s case

4.The following account of the Applicant’s case is mainly based on the information in the torture claim form (“TCF”) and supplemental claim form (“SCF”) prepared by him with legal assistance and the record of his screening interviews in the presence of his lawyer.  In gist, he claims, if returned to the Philippines, he will be harmed or killed by his godfather, who is a drug lord, and his drug syndicate for refusing to work for them, and by the Barangay Brigade, also known as the Davao Death Squad (the “Brigade”) which targets drug users and dealers for harm.

5.The Applicant was born in 1984, now aged 41.  He has two children, aged 9 and 11 born out of his cohabitation with his partner (“LTV”).  His godfather was a drug lord who was influential and well connected with government officials and the police force.  His godfather’s parents, half-brother and brother-in-law held important positions in Calubihan Barangay and Iloilo City.  Occasionally, his godfather was arrested for drug related offences or assault, but he was always released without charge.

6.Since the age of two and until the age of 14, he lived in his godfather’s house in Calubihan.  His godfather was a childhood friend and like a brother to his father.  In Philippines, a godfather is selected by the father and acts as a second father to the child.  His godfather took care of him, treated him well, provided accommodation for him and covered his daily expenses and education costs.  He owed his godfather a debt of gratitude.

7.Between 1995 and early 2006, the Applicant worked “on and off” as his “godfather’s assistant” delivering parcels containing money and favours to senior police officers.   He also worked for a range of other employers as a food seller, delivery helper and tennis ball attendant.  Later, he also delivered drugs.

8.Between 1998 and early 2002, the Applicant left Calubihan to live with his father in Olongapo City and then he moved to Manila to study.  He returned to Calubihan in 2002 to live with his father.  Soon after his return, he resumed working with his godfather peddling drugs.

9.In March or April 2005, the Applicant delivered drugs to a customer who refused to pay.  His godfather accused the Applicant of double-crossing him, questioned him multiple times about the incident and slapped him on the back of his neck (the “double-crossing incident”).  His godfather asked him to sell more drugs and take a more frontline role to make good the loss.  He was not sure if his godfather believed him or not.  Worried about his involvement in his godfather’s business, he renewed his passport without telling his godfather.

10.The Applicant was also worried about the Brigade in his village which was an underground unit comprising of police officers and civilians.  It worked with the police to govern and reduce crime by carrying out extrajudicial killings of suspected criminals, including drug peddlers and users.  If it suspected a person was a criminal, it made warning announcements on the local radio and issued personal warnings to that person. If the person warned did not reform and/or leave the city, he would be killed by the Brigade.  There were almost ten such killings since the Applicant was a teenager until 2006 when he fled to Hong Kong.  He saw such killings on two occasions.

11.In late 2004 to early 2005, the Applicant heard his name announced on the local radio and then received three verbal warnings from the Brigade in person.  He told his godfather about the warnings and his fear for his life.  His godfather scolded him and slapped him on the back of his head.  He believed he had angered his godfather and made his godfather anxious about his loyalty.  He believed his godfather did not know how to deal with the Brigade.  Hence, he tried to lay low and slow down his pace.

12.A few months later, his godfather summoned him, scolded him for two to three hours, punched him and hit him with the butt of a gun until he realised the Applicant was too injured to fight back (the “2005 beating”).  The Applicant went to a village doctor for treatment as he could not afford hospital bills.  He healed in a week.  In mid to late 2005, about a month after the beating, he moved to live with a distant relative 300 metres away and stopped selling drugs.  A week later, he was located by his godfather’s men who asked him when he was returning.  He gave some excuses such as that his fractures were still healing.

13.In December 2005, the Applicant’s father was arrested by the police for defamation.  His godfather’s men told the Applicant that his father would be released if he started selling drugs again.  He spoke with his father on the phone and was told that his father was beaten by the police and other prisoners.  He believed his godfather had bribed the police to bring about his father’s arrest and assault because he refused to work for his godfather.  After promising his godfather that he would sell drugs again, his father was released in early January 2006.

14.A few days after his father’s release, his godfather arranged a large quantity of drugs for him to sell at the Dinagyang Festival.  He was reluctant to sell because of his fear for the Brigade.  His godfather told him that he would be protected and warned him not to a mistake again or “worse things will happen.”

15.On the first day of the festival, his godfather’s men delivered the drugs to him.  He tried to make excuses.  He was blindfolded and taken to an unknown place.  He was tied to a chair and beaten with fists and the but of a gun.  The men placed a plastic bag over his head, sealed it around his neck for approximately one minute to make him feel suffocating. Then, they cut a hole in the bag and poured water into it until it reached just above his nose.  Then they removed the bag and pump water into his nose using a hose.  Then they released the water and let him gasp for air.  They repeated the process more than once consecutively.  He was repeatedly tortured like that for two days.  He was disorientated and lost consciousness several times. He tried to convince the men that he would go back to sell drugs, but they did not stop until he lost consciousness (the “kidnap and torture”).  He believed those men were ordered to punish him and show him that he should fear his godfather more than the Brigade.  That was a common practice used by drug cartels in the Philippines.

16.Subsequently, he regained consciousness in the home of a childhood friend.  His forehead was injured with an open wound.  He had bruises all over his body.  He felt severe pain in his pelvic bone, which he believed was dislocated.  He went to a bone setter for treatment.  The severe pain lasted for a few days.  He could not walk.  It was painful to move.  He then moved to the home of another friend in the village.  A few days later, his godfather’s men asked him when he would resume selling drugs.  He feared being killed by the Brigade if he continued selling drugs and feared being killed by his godfather if he refused to do so.  He did not seek police protection as the Brigade is connected with the police and he had no confidence in the police.   He did not think he could avoid his godfather by relocating in the Philippines.  Thus, he fled to Hong Kong on 27 January 2006.

17.Since coming to Hong Kong, he has not kept regular contact with anyone in the Philippines.  Two or three years after his arrival in Hong Kong, his acquaintances in Hong Kong told him that his godfather and his men had come to Hong Kong looking for him. He was convinced from their description that his acquaintances had been approached by his godfather and his men.  On hearing that, the Applicant went into hiding and stopped reporting his recognisance to the Immigration Department.  He reported again when he was confident that his godfather was no longer in Hong Kong.  He was taken into detention for having failed to report.

18.At the end of 2016, he learned that his godfather’s relatives had been elected as Barangay officials.  Hence, his godfather would have more influence and power, including power over the local police and authorities.  He said that President Duterte openly sanctioned killing and arbitrary arrest of anyone who is even perceived to be involved in drugs.  The president was not only encouraging the Brigade but was orchestrating the vigilante killings.  All these heightened his risk returning to the Philippines.  Of course, it is now common knowledge that President Duterte had stepped down after finishing his term of presidency and was delivered by the incumbent President Marcos to the International Court of Justice to face prosecution.

The finding of the Board

19.The core of the Applicant’s claim is built on four incidents, namely the double‑crossing incident, the 2005 beating, the kidnap and torture and the Brigade’s warnings against his background of being a drug dealer for a drug lord and godfather to whom he owed a debt of gratitude since childhood.  These incidents and the debt of gratitude together form the centerpiece of his case.  He testified before the Board.  However, the Board found serious concerns in respect of the central aspects of his claimed circumstances, which went beyond discrepancies in chronology and inconsequential details.  They arose from inexplicably conflicting and incompatible accounts given by him, which went to the core of his claim.

20.The thrust of the Applicant’s case about his debt of gratitude are that his father and his godfather were friends since childhood; that he lived with his godfather and was brought up by him since the age of eight; and his godfather provided him with accommodation, daily expenses and education costs.  This debt of gratitude, according to the Applicant, was the reason why his godfather was so keen to have the Applicant returned to his employ and hence used threat and violence to coerce him to do so.  This aspect of his case was completely destroyed by his testimony before the Board.  He told the Board that from the age around two in 1986 until 2006 he lived in Calubihan primarily with his father, step-mother and paternal aunt who raised him together with that aunt’s family.  The sources of financial support for the household comprised of his father’s income, his grandfather’s pension and income of his aunts and uncles who did not have their own families initially. Notably the Applicant did not refer to his godfather supporting him or his household in anyway.  He emphasised that his aunt raised him, knew he was involved in dealing drugs and was reprimanded by his godfather for dictating what he could and could not do.  The Board found on the evidence that his godfather had limited input to his upbringing beyond exposing him to use of drugs and dealing in drugs.  Hence, it rejected the Applicant’s claim about the “debt of gratitude” as unsupported by evidence.

21.The Board considered the Applicant’s evidence about the double crossing incident peculiar and unusual for the nature of that kind of transaction.  He said his godfather told him to deliver the drugs and never told him how much to collect and he simply handed over the drugs to the collector whom he had never met without taking payment.  The Board considered the Applicant’s claim that he worked for a drug lord godfather did not accord with the naivety and the absence of any steps taken to pursue the customer in the double-crossing incident.  It rejected his evidence.

22.In his TCF prepared in 2013, the Applicant said these incidents occurred in late 2005 beginning with the double-crossing incident followed by one Brigade’s warning delivered by five men.  But in his SCF prepared in 2017, he said these events occurred in late 2004 beginning with two Brigade warnings.  Not only that the sequence of events described in the TCF and SCF was different, he gave two different accounts about the Brigade warnings.  In his SCF, he said he personally heard the radio announcement of his name three or four times.  In his TCF he said he never heard the announcement but received one personal warning.  It is curious that he omitted to mention in his TCF the other two announcements which he did hear, but mentioned in his SCF the two announcements which he did not hear.  The visit by those five men was also not mentioned in the SCF.  The Board considered the internal inconsistencies cast serious doubts on the truthfulness of his evidence about the Brigade’s announcements and warnings.

23.The Board also considered the Applicant’s claim that he feared harm by the Brigade contradicted by his evidence that his earnings from drug dealing increased in his last month in the Philippines; and his claim to fear harm from his godfather for withdrawing from drug dealing contradicted by his evidence that his sales for his godfather increased in his last weeks in the Philipiines.

24.There are many other inconsistencies.  He told the Board that after the kidnapping and torture incident, he was not involved in any drug deals for his godfather because he tried to lay low and he last sold drugs on the day before the festival.  This is difficult to reconcile with his TCF and SCF in which he said the kidnapping and torture incident occurred because he expressed reluctance to sell drugs during the festival.  He also gave conflicting evidence as to whether his father was dealing in drugs with his godfather, whether his father was detained for defamation for two or three weeks or for nuisance for one week; whether his father was beaten by the police during his detention on the instruction of his godfather or by inmates which not unusually happened in prison.  His father’s arrest and assault is central to his story that his godfather caused his father to be detained and beaten to coerce him to return to dealing in drugs.  He said his family knew he was abusing drugs but did not know he was dealing in drugs. That is inconsistent with his evidence that his aunt knew he was involved in drugs and was therefore reprimanded by his godfather.

25.In conclusion, the Board did not accept that the Applicant was an actual or perceived drug dealer in the Philippines; that he was or is the godson of a drug lord or otherwise; that he was ever of adverse interest to the Brigade or other agents of the Philippine authorities as a suspected drug user, or dealer for a drug lord or that he ever worked for his alleged godfather as a drug dealer; that his name was announced by the Brigade on the local radio or had been given personal warning by the Brigade.  It did not accept the 2015 beating incident, double-crossing incident or kidnapping and torture ever occurred; and that he was ever harmed or targeted for harm by his alleged godfather or any drug syndicate as claimed. It did not accept the Applicant would face a real chance of harm of any kind or death in connection with the above claims if returned to the Philippines in the reasonably foreseeable future.

26.The Board did not consider the Applicant’s drug conviction in Hong Kong would be known in the Philippines.  While accepting he was a drug user in the Philippines in his youth, the Board did not accept this ever resulted in him being placed on a watch list or being singled out for adverse interest by the Brigade, police, vigilante group, or other agents of the Republic of the Philippines.  It also accepted the Applicant has no intention of using or dealing in drugs in the reasonably foreseeable future.  Therefore, it considered the likelihood that he would resume illicit drug use upon his return to the Philippines to be remote. In summary, on the totality of the evidence, the Board did not accept he would face a real chance of proscribed harm should he be returned to the Philippines.  Hence, it found the Applicant is not entitled to protection under any of the applicable grounds under the USM.  Thus, it dismissed his appeal against the Director’s decision in the Notice.

Legal principles applicable to judicial review

27.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[4].

Grounds for judicial review

28.The Applicant did not advance any grounds of application in his Form 86.  In his supporting affirmation, he repeated his fear and risk returning to the Philippines and objected to the Board’s finding that he is not or was not a drug dealer and the godson of his alleged godfather and drug lord.  At the hearing, after the legal principles in the preceding section had been explained to him, he confirmed he had no complaint about errors of law or procedural unfairness.  He complained the Decision is irrational in view of the prevalence of extra judicial killing in the Philippines.  In rejecting his claim as aforementioned, the Board found he would not be at risk of extra judicial killing by the Brigade or by his alleged godfather drug lord.  In essence, the Applicant is seeking to challenge the Board’s finding of fact, which is not permissible in an application for judicial review, save for errors of law, procedural unfairness or irrationality in the Decision which will be considered below.

Overall scrutiny

29.Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, this Court is satisfied that the Board had correctly set out the law and key legal principles relating to the three applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  The Board assessed the Applicant’s evidence carefully and tested it against inherent consistency, common sense and contemporaneous country of origin information. It found him incredible and his story implausible. It set out the Applicant’s evidence fully.  It devoted 32 pages consisting of 95 paragraphs in analyzing the evidence and gave detailed reasons for its finding.  These are finding of fact solely for the Board.   It was on the basis of those facts that the Board found the Applicant would not face any real risk of ill-treatment, if refouled.  The analysis and finding will not be repeated here.  In essence, it found the Applicant incredible and rejected his evidence.  Then, applying the law applicable to non-refoulement protection to the finding of fact, the Board came to the conclusion that the Applicant was not entitled to non-refoulement protection under any of the remaining three applicable grounds under the USM.  These are mixed finding of facts and of the law.  Insofar as they are finding of the law, they are absolutely correct.  Insofar as they are finding of fact, they are exclusively within the province of the Board, which the Court on a judicial review will not interfere save for error of law, procedural unfairness and irrationality.  The Court could detect no error of law in the Decision.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge his burden of proving his fears and risks.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success.

Conclusion

30.For the above reasons, the leave application is refused.

Dated the 13^th day of May 2025

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

[1]  Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[2]  Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[3]  Risk of persecution by reference to the non-refoulement principle under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[4]  [2018] HKCA 524 at [14(1)]