ROBIN, BERNARDO JR FELIZARTA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1675/2019

[2024] HKCFI 1548

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1675 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 Applicant being present in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 3 May 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.  The applicant asked for a hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court, he appeared before the Court on 6 May 2024.

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 49, is a Filipino.  He entered Hong Kong as a visitor on 24 September 2015 and overstayed since 9 October 2015.  The applicant surrendered to the Immigration Department on 23 November 2016.  On 29 December 2016, he was convicted of the offence for overstaying and was sentenced to imprisonment of 18 days suspended for 12 months.  The applicant made a non-refoulement claim on 13 April 2017.  The claim was made on the basis that, if refouled, he would be harmed or killed by people from the Magdalo Party (“MP”) because he supported the Liberty Party (“LP”).

5.  According to the applicant, he worked as a tricycle driver between 1994 and 2015.  The applicant and his whole family were supporters of the Liberty Party.  In around 2013, he had a fight with another tricycle driver who supported the MP.  The applicant attended hospital for treatment after the fight, but he did not report it to the police.

6.  In around January 2015, the applicant started to work as a driver/bodyguard for Strike Revilla (“Strike”), who was the Mayor in his locality and affiliated with LP.  One afternoon in around May 2015, the applicant was instructed to deliver documents with another colleague.  While they were on their way back, they were stopped by four strangers armed with pistols.  One of them warned the applicant and his colleague that something bad would happen to them if they continued supporting the LP.  The applicant and his colleague then argued with the four strangers, which almost escalated into a physical fight.  Eventually, the four strangers left after death threatening the applicant and his colleague.

7.  Around a month later, in June 2015, the applicant was informed that his colleague was shot dead on the street by people from the MP.  The applicant then started to worry about the safety of himself and his family members.  A few days later, he quitted his job with Strike.  In around early July 2015, the applicant’s father told him that his neighbours saw some armed strangers lurking around his house asking for his whereabouts.  His father therefore suggested him to leave immediately to save his life.  On that same day, he relocated to his neighbour’s house.  A week later, he moved to his paternal uncle’s house and stayed there for about a month.  Thereafter, he relocated to homes of different friends and relatives.  Eventually, the applicant left the Philippines in September 2015.

8.  The applicant maintained contact with his family in the Philippines until April 2018.  They told him that there were still strangers lurking around his house and asking for his whereabouts.  They advised the applicant not to come back for the sake of his safety. 

9.  The applicant had never sought assistance from the police.  Meanwhile, he considered internal relocation not viable because he had no relatives or friends elsewhere within the country.  He also had no money for relocation.

10.  Details of the applicant’s story can be found in paragraph 7 of the Director’s Decision dated 29 May 2018 (“the Director’s Decision”).

The Director’s Decision

11.  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”).

12.  By way of the Director’s Decision, the Director dismissed the applicant’s claim.  The Director found that the low intensity and frequency of past ill-treatment from the MP members/supporters indicated that his perceived risk of harm was not as imminent and substantial as claimed.  In fact, given the applicant’s low-tier status in the LP, he would not attract adverse interest from the whole MP in pursuing him, so that his claimed risk of harm was too far-fetched [13]-[15].

13.  In any event, (i) state protection would be available to him upon his return [16]-[19]; (ii) internal relocation would be viable [20]-[23] and (iii) the applicant’s case failed to meet any of the requirement under BOR 2 and BOR 3 risk [25]-[30], Persecution risk [31]-[36] or Torture risk [37]-[41].

The Board’s Decision

14.  The applicant appealed the Director’s Decision to the Board.  On 30 January 2019, the Board conducted an oral hearing.   

15.  During the hearing, the applicant gave vague evidence regarding the murder of his colleague [28].  He was also unable to give the full name of Strike, as well as the full name of LP [29].  Although the applicant claimed that he campaigned for Strike in the Mayor election, he was unable to tell when the last one took place before he left the Philippines and he could not tell either who was competing against Strike in the election [30], [33].  When the Board referred the applicant to the country of origin information that Strike was a member of the National Unity Party instead of LP, the applicant simply said he forgot the name of the political party and made a mistake [34].

16.  Regarding the applicant’s encounters with people from MP, the Board accepted his claim about having a fight with his fellow tricycle driver, but had doubts whether political motives or elements were involved [36].  The Board also found it difficult to believe that (i) the applicant did not inform Strike or anyone else about the threats posed by the four strangers in May 2015 [38]; (ii) the applicant dared to argue with the strangers who were armed with pistols [39] and (iii) people went prowling outside the applicant’s house, but they never made an attempt to break in [40]-[41].  In any event, the threat was made against the applicant working for Strike, which he had already stopped back in in June 2015 [42].

17.  The Board had doubts towards the truth of the central aspects of the applicant’s claims based on his evidence.  It did not accept that the applicant was ever a supporter or campaigner for the LP or any other political party, nor did it accept that he had ever been threatened with harm in connection with his work for Strike.  The Board also did not accept that the applicant’s colleague was murdered by ML members/supporters and that there were people prowling outside his house with intention to harm him [44]-[45].

18.  Based on such findings, the Board considered that the applicant faced no real chance of harm if he returned to the Philippines [46].  It concluded that the applicant’s case failed to meet any of the requirements under Torture risk, BOR 2 and BOR 3 risk or Persecution risk [47]-[66].  The applicant’s appeal was therefore dismissed and the Director’s Decision was confirmed.

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

19.  The applicant has filed Form 86 dated 18 June 2019 for leave to apply for judicial review of the Board’s Decision.

20.  In his affidavit in support of his application, the applicant said his life would be in danger in the Philippines.  He has not raised by specific ground.

DISCUSSION

21.  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).

22.  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 that he could not blame the Board for its decisions because he was unable to show the evidence.  However, he wants the Court to review his case.

23.  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.”

24.  For those reasons given by the Board above, the Board did not accept the applicant’s evidence on the facts in support of his claim.  The applicant has raised no valid reason to challenge the Board’s Decision.  There is no reason for this Court to interfere with the Board’s Decision.

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

CONCLUSION

26.  I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss his 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