REYES ENRICO KARASIG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 967/2017

[2019] HKCFI 1343

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 967 of 2017

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 the Applicant being present / absent in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The applicant is a 54-year-old national of the Philippines who last arrived in Hong Kong on 12 November 2005 with permission to remain as a visitor up to 26 November 2005 when he did not depart and instead overstayed and was arrested by police on 17 October 2008.  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 over a property transaction, which claim was later taken as a non-refoulement claim upon the commencement of the Unified Screening Mechanism.  He was subsequently released on recognizance pending the determination of his claim.

2.  The applicant was born and raised in Malabon City, Manila, the Philippines.  After leaving school he worked as a driver in Malabon City, got married and formed a family.

3.  In 1999 he and his siblings inherited a piece of land in Malolos, Bulacan from his mother.  In 2004 he sold his share of the land to a man called JA for 200,000 pesos, with 60,000 pesos paid upfront and the balance of 140,000 pesos to be paid within one year.

4.  One year later in 2005 the applicant approached JA for payment of the balance, but JA refused to honour that part of their agreement, and when the applicant declared that their transaction would then be treated as cancelled, that the initial payment would be forfeited, and that he would sell his land to someone else, JA threatened that he would kill him if he dared to do so.

5.  Later when the applicant heard that JA was a member of the New People’s Army (“NPA”), a military organization outlawed by the Philippines government as a terrorist group, he became concerned for his own safety, and when he heard that some unknown men had come to his home looking for him, he suspected that JA had sent his men to harm or kill him, he therefore departed the Philippines in November 2005 for Hong Kong where he subsequently overstayed and raised his torture claim which was later taken as a non-refoulement claim, for which he completed a Non-refoulement Claim Form on 21 August 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 10 March 2015 the Director of Immigration (“the Director”) rejected the applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights (“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 all the relevant circumstances of the applicant’s claim and assessed the level of risk of harm from JA to the applicant upon his return to the Philippines as low due to the absence or low intensity and frequency of past ill-treatment from him, that after all these years it was doubtful that JA would still have any adverse interest in the applicant, that in any event it was a private property dispute between them 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 92 million people spread across a vast territory of more than 30 million hectares that it would not be unduly harsh for the applicant as an able-bodied adult with work 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 JA or his men to locate him.

8.  On 19 March 2015 the applicant filed an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 27 January 2016 with legal representation from DLS during which he gave oral evidence and answered questions put to him by the adjudicator for the Board and with submissions made on his behalf by his lawyer.  On 29 November 2016 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  On 17 January 2017 the Director on his own initiative invited the applicant to submit additional facts or further representation which may be relevant to risk to his any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”), and in the absence of any such additional facts or further representation from him or his lawyer, the Director by a Notice of Further Decision dated 6 February 2017 rejected his claim under BOR 2 risk.

10.  On 16 February 2017 the applicant again filed an appeal to the Board against the Director’s Further Decision, for which he did not provide any ground but simply just stated that he was not satisfied with that decision.  As such the Board did not schedule any oral hearing and on 29 August 2017 dismissed his appeal and confirmed the Director’s Further Decision.

11.  In its decision the Board found in the absence of any additional facts from the applicant which might be relevant to BOR 2 risk, and that on the basis of his own case that his claim did not engage BOR 2 risk, and concluded that he had failed to establish a case under that risk. 

12.  On 28 November 2017 the applicant filed his Form 86 for leave to apply for judicial review of this second decision of the Board, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely repeated his claim that his life would still be in danger back home as the NPA was still active in the Philippines.

13.  As has been repeatedly emphasized by the Court of Appeal, 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 being 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.

14.  In the applicant’s case, in the absence of any additional facts or representation from him which may engage the BOR 2 risk, and even based on his own case both the Director and the Board were entitled to find that he has failed to establish any personal or real risk of his absolute and non-derogable rights under the HKBOR including right to life under BOR 2 risk upon his return to the Philippines, and in the absence of any error of law or procedural unfairness in their further decision being identified by the applicant, I do not find any reasonably arguable basis to challenge their findings.

15.  In the premises and having considered the further/second decision 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.

16.  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