CUNTAPAY VICENTE SAN ANTONIO v. TORTURE CLAIMS APPEAL BOARD

HCAL 55/2019

[2022] HKCFI 1003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 55 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 granted.

Observations for the Applicant:

1.  The Applicant is a 51-year-old national of the Philippines who arrived in Hong Kong on 7 June 2016 as a visitor with permission to remain as extended up to 10 July 2016 when he did not depart and instead overstayed, and on 15 July 2016 he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to the Philippines he would be harmed or killed by the local drug dealers and syndicate for suspecting that he had informed on their illegal activities to the police. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in San Vicente, Paombong Bulacan, the Philippines. After leaving school he worked in various jobs, got married and raised a family with 3 children in his home district.

3.  In 2016 while working as a security guard, the Applicant witnessed many illegal drug activities in his neighborhood, and on one occasion when he saw a neighbor named Galvez who was known to be a drug pusher talking to one of the Applicant’s sons, the Applicant warned Galvez to stay away from his sons or else he would call the police about his illegal activities.

4.  Shortly thereafter in February 2016 the police conducted a raid of a house in the neighborhood, and seized some illegal drugs and arrested the drug dealers including Galvez who were later given bail by the court. Soon the Applicant started to hear from the streets that Galvez and the drug syndicate suspected that it was he who informed the police that led to the raid and the arrests of their people, and therefore they wanted to kill him in revenge and as a warning to others of the consequences of being a police informer, as they earlier did to one of the Applicant’s cousins back in 2014 when they shot him dead in the street for being a police informer.

5.  A few weeks later the Applicant started to see strangers appearing suspiciously outside his home, and one day while he was on his way home from the market, he noticed a man following him from behind, and when he saw him pulling out a gun, the Applicant immediately ran away to hide in his brother’s house, and after making a report to the local police but getting no immediate result, the Applicant felt it was no longer safe to remain in the Philippines, and so he fled to Manila, and from there he later departed for Hong Kong where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 4 May 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

6.  By a Notice of Decision dated 8 June 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”).

7.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that he would be in danger of being harmed or killed by those drug pushers or drug syndicate upon his return to the Philippines in the absence of any concrete evidence of any threats from them other than rumors and speculations, that in any event 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 300,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of the Philippines away from his home district in large cities such as Manila where it would be difficult if not impossible for those drug pushers or drug syndicate to locate him.

8.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 21 September 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 31 December 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board found that the drug pushers and drug syndicate involved would have such control of the area of their operation to know who was the informer and could not have mistaken about the Applicant that his claim that they had sent a man to kill him as unpersuasive, the fact that the arrested drug pusher was given bail shortly by the court shows that it must be a small and mundane case which the police would not have bother to raid in a place where there were already too many such mundane cases or that any person would bother to act as an police informer on such cases, and that the drug pushers and syndicate could have easily killed the Applicant had they wanted to instead of failing to do so as clumsily as alleged by the Applicant, and concluded that his credibility must be rejected and that his claim for non-refoulement protection failed on all applicable grounds.        

10.  On 8 January 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affidavit of the same date he put forward the following complaints:

“ … Following the decision dated 21^st September 2018 with the Torture Claims Appeal Board regarding my case, I would like to express that the decision has ignored the danger that awaits me considering the circumstances which compelled me to flee to Hong Kong. As I have already mentioned in my previous interviews with Immigration Appeal Board.

There are growing concerns about insecurity and corruption system which indicates that there is insecurity regarding Philippines vigilante killings and contract killers as well, not Considering the above challenges facing the Philippines, there is no security guarantee if I am forced back to my country of origin. With reference under the assessment of claim paragraph 24 to 25 in page 5 “that account, of events, is credible, it is assessed that the level of risk of harm or even killed by the gun man upon assessed to be high having taken into account all the relevant circumstances as explained in paragraph 49 in page 9 in determination of appeal/petition with a hearing. However, the decision by the Hong Kong Immigration has only relied on foreign researcher’s findings, which mainly focus on only the good side of the country of origin’s report instead of the Philippines local newspapers which reports the real situations about the country.

To demonstrate my fear and other uncertainties on the part of the insecurity regarding my life, I have therefore attached various local newspapers in support of my appeal for further consideration.”  

11.  However, these complaints of the Applicant about corruptions and insecurity in the Philippines do not appear to me reasonably arguable for or relevant to his intended challenge of the Board’s decision for dismissing his appeal essentially on its adverse findings against the credibility of his claim of fear of harm from drug gangsters. Nevertheless, given the serious implications and consequences of the Board’s decision, high standards of fairness require that its reasons for rejecting the Applicant’s claim and dismissing his appeal on credibility be scrutinized by the Court for any error of law or irrationality or procedural unfairness in the decision.

12.  The Board’s reasons for rejecting the credibility of the Applicant’s claim of fear of being harmed or killed by the drug pushers and syndicate are set out in §§ 41 – 48 of its decision as follows:

“41. It was the Appellant’s case that Galvez wanted to kill him as revenge because Galvez believed that he had informed on him to police resulting in his arrest. As I pointed out earlier, the Appellant, when facing Galvez’s threats of retaliation, never sought to explain. The Appellant, in the light of such serious accusation, took a flimsy view that he would not be believed and likewise police would take bribe against him and then satisfied himself that he could do nothing. On the other hand, Galvez and the big syndicate to which he belonged should have some kind of “control” over the area for their dangerous drugs business and it would be easy for them to know from police, through bribes or other means, who was the informer. They could not have mistaken the Appellant as informer.   

42. Therefore, I find that the Appellant’s bare assertion that a man with a gun wanted to shoot him because he was mistaken to be the informer of police against Galvez lacked persuasion by itself in the circumstances it related.

43. According to the Appellant, police acting on information “searched the drug pusher’s home and seized some illegal drugs from the house” (NCF, Answer 35, para 7). The drug pusher was given bail shortly by the court in the court appearance. Therefore this must be only a small and mundane case.

44. The Appellant also described the neighbourhood in which he and the drug pushers lived as a place where dangerous drugs and their pushers were rampant. In such place in the Philippines, I do not believe police would act on such mundane information to raid a place which was too numerous anywhere. The police, given their resources, must have their own priorities when there was a vast amount of such mundane cases occurring at anytime anywhere in Bulacan. In the same way, I also wonder whether any people would bother to act as informers on such cases. Police must have known all the drug pushers and their places of operation.

45. The Appellant was facing angry Galvez and a big syndicate that wanted to take revenge on him in the neighbourhood they shared, according to him. I believe if they wanted to kill the Appellant who was known to them, they could do it instantly without much ado, just like his cousin for example. On the description of the Appellant, they were clumsy in the execution. First, when Galvez met the Appellant face to face, he did not shoot him but gave him advance notice of revenge in future. People could be sent to the Appellant’s home not to stand outside but to shoot him instantly which must be the easiest way but nothing of this sort happened. Instead, a gunner was positioned in the market waiting for the Appellant. He could not even shoot the Appellant when he had pulled out his gun and the Appellant was just next to him.

46. It was the Appellant’s case that he had incurred the wrath of Galvez, the drugs pusher, and the big syndicate behind him and, as a result, they wanted to kill him. I do not believe the Appellant was being mistaken as informer and I do not believe attempts had been made to kill him. The Appellant’s story which was meant to support his claim for non-refoulement protection was simply implausible.

47. The Appellant also maintained that he offended the drug pusher Galvez in order to protect his sons. However, all his sons were adults, independent, and living apart from him. He could not protect his sons by shouting to the drug pushers. He could do better by shouting to his sons instead if shouting could achieve anything.

48. having considered the Appellant’s case as a whole, I find his story that someone wanted to kill him because he was mistaken as informer was absurd. I find the Appellant failed to substantiate that he would face a genuine and substantial risk to life in the Philippines.”  

13.  From these one can summarize the Board’s reasons for its adverse findings on the credibility of the Applicant’s claim essentially as follows:

 (1)  That the Applicant should have tried to explain to the drug pusher Galvez that he was not the informer but somehow he did not which the Adjudicator found to be unpersuasive;

 (2)  That Galvez and the drug syndicate could not have mistaken the Applicant to be the informer as they would have “control” over the neighbourhood including the police from whom they could have easily found out who was actually the informer;

 (3)  That the drug pusher arrested in the raid was shortly thereafter given bail by the court which showed that it was only a small and mundane case that given the resources of the police and the large amount of such mundane cases anytime and anywhere occurring in Bulacan that it is unbelievable that the police would act on such a mundane case as claimed by the Applicant or that anyone would bother to act as police informer on such cases; and

 (4)  That Galvez and the drug syndicate could have easily killed the Applicant instantly and would not have given him any advance warning or acted so clumsily in failing to carry out the execution. 

14.  However, from the relevant information and material available before the Board and the oral evidence of the Applicant given in his appeal hearing and referred to in the Board’s decision, there does not appear to be any evidential basis for the Adjudicator to make any of such findings referred to above, and that even if there were but which I have not seen, there seems to me a lack of objectivity or impartiality in the Adjudicator’s assessment of the credibility of the Applicant’s claim by relying on what appears to be the Adjudicator’s own intuition speculations or assumptions not found or based on facts or evidence, such as the drug syndicate would have control of their area of operation, that the raid conducted by the police was a small and mundane case because the arrested drug pushers were soon released on bail by the court, that there were so many such small and mundane cases that the police would not have bother to raid or that anyone would bother to act as an informer, and that the drug pushers could have easily shot or killed the Applicant had they wanted to do so.

15.  As stipulated by UNHCR in its Asylum Procedures Directive (“APD”), in assessing the credibility of a claim for international protection, decision-makers are required to ensure that the applications be examined and decisions taken objectively and impartially, and that such requirement of objectivity and impartiality applies throughout the procedure, including the process of both gathering and assessing evidence, and it also applies to the examination of all applications regardless of the applicant’s identity, background, or circumstances (see Article 8(2)(a) of APD).  

16.  This requirement is in fact reflected in the national legislation and guidance of EU Member States, such as in the UK guidance, UKBA, Asylum Instructions, Considering Asylum Claims and Assessing Credibility, February 2012 where it stated at p.12:

“[a]ssessing the credibility of a claim is not about making negative credibility findings and focusing on refusal. It is an objective assessment of the material facts that go to the core of the claim […]. The guidance adds: ‘It should be a neutral assessment of the material facts […] in which subjectivity should be kept to a minimum.”

17.  The importance of such requirement is further elaborated in the UNHCR Beyond Proof – Credibility Assessment in EU Asylum Systems, May 2013, at p.38:

“The requirement of impartiality and objectivity applies regardless of the circumstances of the case. As stated in the UNHCR Handbook, the decision-maker must conduct the fact-finding process “in a spirit of justice and understanding and his judgment should not, of course, be influenced by the personal consideration that the applicant may be an ‘underserving case’.”

It is, therefore, critical that decision-makers do not prejudge credibility and do approach the task with scepticism or a ‘refusal mind-set’. This may prejudice and distort the processes of both gathering information and assessing the applicant’s statements and other evidence, thereby violating the requirement of impartiality.

The examiner(s) must, therefore, start out with maintaining and being seen to maintain an open mind throughout the procedure. This is particularly salient when only one case worker handles an application, and none or only limited review or quality checks are carried out on decisions to reject claims for protection, in particular the basis for the findings of fact upon which decisions are made. In some Member States, while decisions to grant international protection may require peer review by a senior colleague, decisions to reject an application may be taken by the one case worker without any peer review.

…

It is, therefore, vital that decision-makers recall that their task is to uphold fundamental human rights and identify applicants who qualify for international protection. Furthermore, it is crucial that determining authorities take appropriate steps, as necessary, to ensure an institutional mind-set that is protection-oriented and an institutional culture that is ‘protection-sensitive’.     

18.  In particular, it is emphasized that the credibility assessment should be based on the available relevant evidence only and not on the decision-maker’s own intuitions speculations or assumptions which violate the principle of objectivity, at p.39:

“ … examiners need to be aware that their perception of the applicant and his or her application should not be negatively influenced by issues that are not pertinent to the material facts of the application …

The credibility assessment should be based on the available relevant evidence and not on the decision-maker’s intuition or gut feeling. Speculative argument that fails to rely on objective and reliable sources of information and that reflects the decision-maker’s own theory about how the applicant or others could or should have acted, or about how certain events could or should have unfolded, violates the principle of objectivity. As expressed in the Australian guidance: “What is capable of being believed is not to be determined according to the Member’s subjective belief or gut feeling about whether an applicant is telling the truth or not. A Member should focus on what is objectively or reasonably believable in the circumstances.”

Assessing credibility, therefore, requires decision-makers not just to assess the statements and other evidence applicants present, but also to be aware of the extent to which their own emotional and physical state, values, views, prejudice, and life experiences may influence the objectivity and partiality of their decision-making. This will enable them to minimize subjectivity and partiality.”

19.  It is of course well acknowledged of the challenges of the credibility assessment in the asylum procedures, as decision-makers have to decide under conditions of uncertainty in the asylum system, which is further compounded by the geographical and cultural distance between the country of origin in which the alleged facts occurred and the country in which the application for international protection is examined, as well as the amount of time that has elapsed between these facts and the hearing of the case.

20.  Such challenges were in fact emphasized by Lord Justice Keene of the UK Court of Appeal in Y v Secretary of State for the Home Department [2006] EWCA Civ 1223, 26 July 2006 at para 25:

“An English judge may have, or think that he has, a shrewd idea of how a Lloyd Broker or a Bristol wholesaler, or a Norfolk farmer, might react in some situation which is canvassed in the course of a case but he may, and I think should, feel very much more uncertain about the reactions of a Nigerian merchant, or an Indian ship’s engineer, or a Yugoslav banker. Or even, to take a more homely example, a Sikh shopkeeper trading in Bradford. No judge worth his salt could possibly assume that men of different nationalities, educations, trades, experience, creeds and temperaments would act as he might think he would have done or even – which may be quite different – in accordance with his concept of what a reasonable man would have done.”

21.  In the present case, given the Board’s findings as noted above, and for the reasons given, I am of the view that it is reasonably arguable that (i) the Adjudicator had failed to assess the credibility of the Applicant’s claim with the required objectivity and impartiality; and (ii) that the Adjudicator had wrongly or inappropriately relied on his own intuition speculations or assumptions not supported by facts or evidence before the Board, thus meeting the threshold for leave to be granted for judicial review as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.       

22.  Accordingly, I grant leave to the Applicant to apply for judicial review of the Board’s decision on these grounds, and that he shall file the originating summons within 14 days of this decision and to serve a copy thereof together with all the relevant documents on the Board as respondent and on the Director as interested party.

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