PALACIO ARIEL AYAGAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1093/2019

[2024] HKCFI 346

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1093 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 absent 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 April 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, a hearing was fixed for him to appear the Court on 10 January 2024. He was absent without prior notice to the Court. I shall deal with his application on paper.

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 58, is a Filipino. He arrived in Hong Kong as a visitor in March 2009. He overstayed since 16 April 2009 and he surrendered himself to the Immigration Department on 11 June 2009. He made a torture claim on 11 August 2009, which was rejected on 6 August 2013 (“the Director’s 1^st Decision”). On 30 August 2013, the applicant made a further non-refoulement claim on all applicable grounds other than torture risk[1]. The claim was made on the basis that, if refouled, he would be harmed or killed by his uncle (“Uncle TaTa”), who was an adopted child of his paternal grandparents, and his children due to a land dispute.

5.  According to the applicant, his paternal grandparents owned a piece of land. Upon their death, the title of the land was transferred to his father and his biological uncles and aunts, though it had not been legally divided. Uncle TaTa contested the ownership of the land at court, but lost the case. After the death of his father in 2008, Uncle TaTa accused the applicant of having the land title documents, given that he was the eldest son of his father, who in turn was the eldest son of the applicant’s grandparents. In February 2008, the applicant received threatening SMS from Uncle TaTa twice. A few days after receiving the threatening SMS, the applicant changed his phone number and he received no more threat from Uncle Tata. The applicant had no idea whether his biological uncles and aunts were also threatened by Uncle Tata, though he received information from his relatives that some arguments and serious physical fighting broke out among them.

6.  To avoid the threats from Uncle Tata, the applicant decided to leave the Philippines. He stayed in Manila for almost a year before leaving to save money for the air ticket and living expenses.

7.  In November 2017, the applicant was told that Uncle Tata passed away and his children followed suit to claim the ownership of the land. The applicant claimed that Uncle Tata’s children approached his biological uncles and aunts and caused turmoil to them in order to get their respective shares of the land. They did not approach the applicant and he was also unsure whether Uncle Tata’s children approached his siblings.

8.  The applicant was of the view that he could not seek protection from the government because Uncle Tata had relatives working there, i.e. one working in the city hall and another for the local police. He believed that he could avoid the threats from Uncle Tata and his children by internal relocation within the Philippines, but did not consider doing so due to financial consideration.

9.  Details of the applicant’s story can be found in paragraph 8 of the Director’s Decision dated 10 August 2018 (“the Director’s 2^nd Decision”).

The Director’s Decision

10.  The Director considered the applicant’s claim in relation to the following risks:

a.  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”);

b.  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

c.  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”).

11.  By way of the Director’s 2^nd Decision, the Director dismissed the applicant’s claim. The Director found that (i) the absence or low intensity and frequency of past ill-treatment from Uncle Tata and his children in the past is indicative of a small future risk of harm upon his return to the Philippines [15]-[19]; (ii) state protection will be available to him upon his return [20]; (iii) internal relocation is viable [21] and (iv) the applicant’s case failed to meet any of the requirement under BOR 2, BOR 3 risk [22]-[27] or Persecution risk [28]-[32].

The Board’s Decision

12.  The applicant appealed the Director’s 2^nd Decision to the Board. On 11 January 2019, the Board conducted an oral hearing with an interpreter.

13.  Having considered the applicant’s evidence, the Board accepted that there was a land dispute, but it did not and would not directly affect the applicant in any way. The Board reviewed the court’s decision provided by the applicant and found that it concerned a dispute between the applicant’s grandfather and his three siblings. The Board also found that Uncle Tata, whose real name is Bartolome was a brother of the applicant’s great grandfather who died in 1942. It was therefore against the laws of nature that Uncle Tata would still be alive in 2008, i.e. 75 years after the death of the applicant’s great grandfather. Further, the Board discovered from the documents that the applicant’s father was still paying tax in 2013, meaning that he was still alive at that time, which was contrary to the applicant’s evidence.

14.  The Board formed the view that the applicant was not a witness of truth and he had fabricated claims in relation to Uncle Tata. The Board found that the applicant (i) never had an Uncle Tata and no cousins born to an Uncle Tata; (ii) never been harassed or threatened in relation to a land dispute; and (iii) not of any adverse interest to any relatives who was upset about not receiving a share of land.

15.  Details of the factual findings from the Board were set out in paragraphs 96-118 of the Board’s Decision.

16.  In light of such findings, the Board concluded that the applicant’s case failed to meet any of the requirement under Persecution risk [2]-[10], [131], BOR 2 or BOR 3 risk [11]-[15], [129]-[130]. In any event, the applicant would be safe if he stayed in Manila [119]-[128].

17.  For the above reasons, the Board dismissed the applicant’s appeal and confirmed the Director’s 2^nd Decision.

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

18.  The applicant has filed Form 86 dated 24 April 2019 for leave to apply for judicial review of the Board’s Decision.

19.  The applicant has raised the grounds below in support of his application.

(1)  He was not given the opportunity to make his submissions because the hearing bundle was served late and he was not invited to submit written submissions to reply to submissions made by the representatives of the Director.

(2)  The Board had relied on the source of news, which is not officially recognized or it is simply hearsay. It had also relied on some outdated cases. The lack of credible source of information has resulted in them making groundless speculations that it is safe for him to return to his country of origin.

DISCUSSION

20.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its 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).

21.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

22.  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.”

23.  The grounds raised in paragraph 19 are not valid to challenge the Board’s Decision. There is no evidence that he had complained to the Board that he was not given time to prepare his case. Nor was there any application for adjournment of the hearing to give him more time to prepare for the hearing. The Director was not represented at the hearing. He cannot complain that he was not given a chance to reply to the submissions of the representative acting for the Director. It is only his personal opinion that the Director had relied on outdated cases or he had made speculations that he is safe to return to the Philippines.

24.  There is no reason that the Court should interfere with the Board’s finding of the facts. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

25.  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