Hermosa Jason Franco v. Torture Claims Appeal Board
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HCAL 2100/2019 [2025] HKCFI 3500 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 2100 OF 2019
Application for Leave to Apply for Judicial Review Following:
Order by Deputy High Court Judge Bruno Chan: Leave to apply for judicial review be refused. Observations for the Applicant: 1.The Applicant is a 44-year-old national of the Philippines who last arrived in Hong Kong on 17 February 2016 as a visitor with permission to remain as such up to 2 March 2016 when he did not depart and instead overstayed, and on 7 March 2016 he surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if he returned to the Philippines he would be harmed or killed by a man suspected to be a member of the terrorist group New People Army (“NPA”) due to their personal dispute. He was subsequently released on recognizance pending the determination of his claim. 2.The Applicant was born and raised in Marikina City, Manila, the Philippines. After leaving school he worked in various jobs including as a factory worker, a warehouseman and a delivery driver to make his living, got married and raised a family with 2 children in his home district. 3.One day in January 2008 while he together with his family and relatives were attending his father’s funeral ceremony in his home, a stranger whom the Applicant later leant to be known by the name of Bien suddenly appeared and demanded to enter the house without giving any reason, and when the Applicant tried to stop him, it led to a heated argument between them and subsequently deteriorated into a fist fight between them during which Bien injured the Applicant with a knife but was subsequently restrained by other members of the Applicant’s family and left thereafter without further incident, whereupon the Applicant was taken to a local hospital for medical treatments. 4.After the incident the Applicant heard that Bien was a member of the terrorist group NPA and became concerned that he might return to harm or kill him, and so the Applicant fled from his home district to various towns including Bulacan, Pampanga and Batangas before returning to his home district in October 2015. 5.However, one day in November 2015 the Applicant ran into Bien in town who then tried to attack him but was restrained by other people on the street, and before he left Bien threatened to kill the Applicant next time when he saw him again in town. 6.As a result the Applicant felt it was no longer safe to remain in the Philippines, and so on 10 December 2015 he departed for Hong Kong when he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 8 March 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). 7.By a Notice of Decision dated 26 March 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”). 8.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from Bien upon his return to the Philippines as low due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of Bien to seriously harm or kill him other than angry words and empty threats or that Bien was a member of NPA or to have any involvement with NPA other than hearsays and speculations, that in any event it was just a private personal dispute between just the 2 of them only without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in the Philippines with a large population of 104 million people spread across a vast territory of more than 298,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home district in large cities such as Manila City where it would be difficult if not impossible for Bien to locate him. 9.On 9 April 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 9 April 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 8 May 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision. 10.In its decision[1] the Board accepted the Applicant’s claim of threats from Bien arising from one isolated incident between them without any reliable evidence of any real intention of Bien to seriously harm or kill him, nor is there any evidence that Bien and his followers were in fact members of NPA or to have any connection with NPA other than hearsays and speculation, and that in any event in the absence of any official involvement that state or police protection would be available to the Applicant upon his return to the Philippines as well as reasonable internal relocation alternatives for him to move safely to other parts of the country away from his home district without any risk of being located by Bien that his claim for non-refoulement protection failed on all applicable grounds. 11.On 23 July 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or his supporting affirmation of the same date in which he just stated that he is not satisfied with the decision but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application. As such, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge of the Board’s decision. 12.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524. 13.In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in his claim if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of the Philippines, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526. 14.In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim. 15.For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his application. Dated the 19th day of August 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 |
Cases cited in this judgment