MATIBAG RONNEL PAET v. TORTURE CLAIMS APPEAL BOARD

HCAL 634/2019

[2023] HKCFI 129

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 634 of 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by (counsel for) the Applicant in open court / the Applicant being absent in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 33-year old national of the Philippines who last arrived in Hong Kong on 2 August 2008 as a visitor with permission to remain up to 4 August 2008 when he did not depart and instead overstayed, and was arrested by police more than 7 months later on 26 March 2009. After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to the Philippines he would be harmed or killed by the man whom the Applicant had witnessed committing a murder, and after his torture claim was treated as withdrawn, he then sought non-refoulement protection on the same basis. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Parangay Pinagdalayan, Dolores, Quezon, in the Philippines. After completing high school education in 2006, he went on to university at Saint Chamuel Institute of Technology in Taguig, Manila.

3.  One day in 2007 whilst on his way to his parents’ home in Quezon for the weekend, he heard some gunshots from a house near his home, and when he looked inside the house through its window, he saw several men standing over some dead men lying on the floor, and was able to recognize one of the men holding a gun as a well-known local hired killer known as Arnold, but when Arnold spotted him outside the house and shouted at him, the Applicant fled from the scene to run back to his parents’ home.

4.  After he had told his parents what he saw, his parents advised him to return to his university in Manila, and so the Applicant immediately returned to Manila, but one week later he was told by his parents that Arnold had come to their home in Quezon looking for him, and when he later also saw Arnold in the neighbourhood of his university in Manila, he became fearful that he would eventually be tracked down by Arnold, and so on 24 July 2008 he departed the Philippines for Hong Kong and then Macau, and on his return trip to Hong Kong on 2 August 2008, he did not depart and overstayed in Hong Kong, and upon his subsequent arrest, he raised his torture claim which was later treated as withdrawn after he failed to return his Torture Claim Form (“TCF”), and after having absconded from his recognizance for several occasions and upon his arrest by the police on the last occasion when he was detained by the Immigration Department, he then sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 29 March 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 10 May 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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”).

6.  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 Arnold and his men upon his return to the Philippines as low due to the low intensity and frequency of past ill-treatment from them, that in any event being a witness of a crime and in the absence of 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 territory of more than 298,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied young adult to move to other part of the country away from his home district in large cities such as Manila and Cebu where it would be difficult if not impossible for Arnold or his men to locate him.

7.  On 23 May 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 22 October 2018 before the Board during which he gave oral evidence and answered questions raised of his claim by the Adjudicator for the Board. On 22 February 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision the Board found the Applicant’s evidence inconsistent and unconvincing that it doubted the credibility of his claimed fear for fleeing his home country for Hong Kong, and that in any event as a witness of a crime without any official involvement that state/police protection would be available to the Applicant upon his return to the Philippines as well as reasonable internal relocation for him to move safely to other part of the country away from his home district without any risk of being located by anyone that his claim for non-refoulement protection failed on all applicable grounds.

9.  On 6 March 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, and in his supporting affidavit filed on the same day he just stated that he rejects the decision as it disregarded his dangerous situation 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.

10.  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.

11.  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 true 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.

12.  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.

13.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.

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