MANEBOY WILLIAM MONTERO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1832/2019

[2024] HKCFI 2442

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1832 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 the Applicant in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is an application by Mr Maneboy William Montero (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 24 June 2019 (“2019 Board Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 1 February 2017 (“2017 DOI Decision”) in refusing the Applicant’s claim for protection under Article 2 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) (“BOR 2 Claim”).

Background of the Applicant and his claims

2.  The Applicant is a Filipino. He was born on 23 August 1981 in Bagong Barrio, the Philippines.

3.  He received 8 years of education and had 7 years of work experience. He worked as a cement mixing worker and a factory worker in the Philippines from 1996 to 2004. He came to Hong Kong in 2006.

4.  He filed an application with the United Nation High Commissioners for Refugees of Hong Kong in 2007 (“Refugees Claim”) which had been subsequently rejected.

5.  On 26 August 2008, the Applicant made a claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT Claim”).

6.  Upon the commencement of the unified screening mechanism (“USM”) on 3 March 2014, the CAT Claim was taken to be a non-refoulement claim and was assessed under the USM.

7.  The Director assessed the CAT Claim on grounds including:

(a)  risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (the “Ordinance”) (“torture risk”);

(b)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

(c)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”)

8.  By a decision dated 23 December 2014 (“2014 DOI Decision”), the Director refused the CAT Claim.

9.  On 13 February 2015, the Applicant applied to the Board to appeal against the 2014 DOI Decision out of time.

10.  By a decision dated 17 July 2015 (“2015 Board Decision”), the Board refused the Applicant’s time extension application. The CAT Claim was thus concluded.

11.  By a letter dated 9 January 2017, the Director invited the Applicant to submit additional facts, if any, which he considered relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection, including any other absolute and non-derogable rights under HKBOR, including BOR 2 (“BOR 2 risk”).

12.  The Applicant did not submit any additional materials or facts on any other absolute and non-derogable rights under HKBOR, particularly BOR 2 risk. The Director proceeded to assess the BOR 2 Claim of the Applicant based on information submitted by the Applicant for the CAT Claim.

13.  By the 2017 DOI Decision, the Director rejected the BOR 2 Claim. The Applicant appealed against the 2017 DOI Decision to the Board (“2017 Appeal”). By the 2019 Board Decision, the Board rejected the 2017 Appeal and affirmed the 2017 DOI Decision.

14.  On 2 July 2019, the Applicant filed the Form 86 herein (“Form 86”) seeking leave to apply for judicial review against the 2019 Board Decision. The Applicant named both the Board and the Director as proposed respondents and interested parties in the Form 86.

15.  The Applicant filed his supporting affidavit also on 2 July 2019 (“Supporting Affidavit”).

16.  When the Applicant filed the Form 86, the Applicant stated that he did not request an oral hearing. As such, his leave application has been determined by papers disposal without an oral hearing.

The Applicant’s claims

17.  The CAT Claim had been concluded as aforesaid and this court is only concerned with the BOR 2 Claim in this intended judicial review.

18.  As the Applicant had not submitted any additional materials for the BOR 2 Claim and the Director and the Board had assessed the BOR 2 Claim based on information and materials submitted by the Applicant for the CAT Claim, I shall set out particulars of the CAT Claim below for the purposes of understanding the BOR 2 Claim.

19.  The Applicant relied on the following facts for the CAT Claim which had also been considered by the Director and the Board for determining the BOR 2 Claim.

20.  In around mid-2005, a member of an unknown communist group (“Group”) approached the Applicant and invited him to meet a group of people in a nearby house. He agreed and met about 10 people inside the house. They asked him to join their communist group but he refused. They told him not to tell anyone about the encounter. He stayed inside the house for about 20 to 30 minutes and nothing happened to him.

21.  A few days later, the Applicant noticed that he was being followed by a member from the Group. He then moved to Manila and found a part-time job in a construction site. While he was in Manila, four unknown men visited his house in his home town to ask for his whereabouts. The Applicant’s mother also noticed those men loitering around his house on a few occasions. The Applicant did not encounter any member of the Group while working in Manila.

22.  The Applicant claimed that he would be harmed or ill-treated by the Group if he were returned to the Philippines.

Procedural history of the CAT Claim and the BOR 2 Claim

23.  The Applicant arrived in Hong Kong on 26 February 2006 as a visitor. He was allowed to stay until 19 March 2006. He overstayed and was arrested by the police on 18 February 2008 for having overstayed in Hong Kong. On 19 February 2008, he was referred to the Immigration Department for investigation.

24.  By a written representation of 26 August 2008, the Applicant lodged the CAT Claim.

25.  By the 2014 DOI Decision, the Director refused the CAT Claim and by the 2017 DOI Decision, the Director refused the BOR 2 Claim.

26.  The Applicant appealed against both DOI Decisions. He was late in bringing the appeal against the 2014 DOI Decision and his application to lodge the notice of appeal out of time was refused by the 2015 Board Decision. His appeal against the 2017 DOI Decision was dismissed by the 2019 Board Decision.

27.  On 2 July 2019, the Applicant filed the Form 86 seeking leave for judicial review of the 2019 Board Decision.

The 2017 DOI Decisions

28.  In the 2017 DOI Decision, the Director referred to the 2014 DOI Decision stating that the assessment on the risk of the Applicant’s feared treatment materializing upon his return to the Philippines found in the 2014 Decision would not be affected. On such basis, the Director found in the 2017 DOI Decision that the Applicant had failed to establish the BOR 2 risk upon his return to the Philippines.

29.  As the Director’s findings in the 2014 DOI Decision formed the basis for the 2017 DOI Decision, I shall briefly set out below the Director’s findings in the 2014 DOI Decision.

30.  After considering all the relevant circumstances, the Director was of the view that there were no substantial grounds for believing that the Group intended to harm the Applicant. This was because neither the Applicant nor his family had ever been harmed by the Group and the Group allowed the Applicant to leave freely after their first encounter. The Director found that the Applicant’s concern about being harmed by the Group was “too far-fetched” (§17 of the 2014 DOI Decision).

31.  The Director further noted that the Applicant did not raise his first claim for protection (ie the Refugees Claim) until he had been in Hong Kong for about 10 months. The Applicant told an immigration officer during the screening interview that he engaged in sight-seeing and visiting his friends while in Hong Kong and that he raised the Refugees Claim in 2007. The Director found that his actions were inconsistent with the stated purpose of his visit to Hong Kong, namely to seek protection.

32.  On the issue of state protection, after considering the relevant country of origin information (“COI”), the Director found that there might be some corruption problems within the Philippine police but there were objective indications in the COI that the Philippine government took steps to improve the police force. The Director found that the Philippine government was able and willing to protect the rights of its citizens.

33.  The Director further found that internal relocation would be viable. If the Applicant moved to Manila, the Group would have great difficulty in locating him. The Director also doubted whether the Group had any continuous interest in locating him (§17 of the 2014 DOI Decision). The Applicant was able to stay in Manila for a month without encountering the Group. After considering his age and work experience, the Director found that it would not be unduly harsh to expect him to relocate to Manila.

34.  Based on the aforesaid findings of fact made in the 2014 DOI Decision, the Director dismissed the CAT Claim. Based on the same findings of fact, the Director also dismissed the BOR 2 Claim.

The 2019 Board Decisions

35.  The 2017 Appeal was decided by the Board without a hearing.

36.  The Board considered the Applicant’s case and held that even if the Applicant’s evidence was taken at its height, his encounter with the Group for about 20 to 30 minutes and being followed by one of those men could not be a valid basis for claiming that he faced serious harm from them.

37.  The Board found that his claim for protection based on fear of harm by the Group was based on “the most extreme speculation” and unsupported by any credible evidence. The Board was not persuaded, even to the low standard applicable, that there was a real risk or real chance that the Applicant would suffer arbitrary deprivation of his life in contravention of BOR 2 if he were refouled to the Philippines.

38.  By the 2019 Board Decision, the Board dismissed the 2017 Appeal.

Legal principles applicable to judicial review

39.  In a judicial review, the court does not step into the shoes of the decision makers.

40.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“ The role of the court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. 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”.

41.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

42.  The Applicant did not advance any grounds for his intended judicial review in the Form 86. In the Supporting Affidavit, the Applicant only stated that he would like to reject and review the 2019 Board Decision. He only exhibited the 2019 Board Decision to the Supporting Affidavit without other supporting documents.

43.  In the 2014 DOI Decision, 2017 DOI Decision and the 2019 Board Decision, the Director and the Board had set out the reasons for their respective findings leading to their decisions in rejecting the BOR 2 Claim and the 2017 Appeal.

44.  It is noted that the Board had determined the 2017 Appeal without an oral hearing pursuant to §15 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme. The Applicant did not ask for an oral hearing in his notice of appeal for the 2017 Appeal dated 17 February 2017. In his aforesaid notice of appeal, the Applicant expressly declared that:

“ I understand that the Board/Adjudicator may determine an appeal/petition without a hearing if, having regard to the material before it and the nature of the issues raised, the Board/Adjudicator is satisfied that the appeal/petition can be justly determined without a hearing.”

45.  In the “discussion section” of the 2019 Board Decision, the Board proceeded on the basis of assuming that the Applicant was giving a truthful, and reliable, account of his past experiences in the Philippines and in considering “future risk” to the Applicant, the Board had taken the Applicant’s evidence at its height. As the Board did not see any point that might have troubled the Board which required clarification from the Applicant, the absence of an oral hearing would not constitute procedural unfairness. It is also noted that the Applicant has expressly stated that he did not ask for an oral hearing for this leave application.

46.  The Applicant did not provide any particulars or specifics as to how the Board had erred in the 2019 Board Decision in affirming the 2017 DOI Decision, or in what way was the 2019 Board Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters.

47.  Having rigorously examined the 2019 Board Decision, the 2014 DOI Decision and the 2017 DOI Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to assessing the BOR 2 risk; the burden of proof and standard of proof; correctly identified the issues and observed very high standards of fairness.

48.  The Board found that there was no real risk or real chance that the Applicant would suffer ill-treatment of any sort or arbitrary deprivation of his life in contravention of BOR 2 if he were refouled to the Philippines. It was on such basis that the Board found that the Applicant had failed to prove his claim for protection against the BOR 2 risk. These are findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved errors of law, procedural unfairness or irrationality. In this case, the court does not detect any error of law in the 2019 Board Decision or procedural unfairness at any stage of the non-refoulement proceedings. The 2019 Board Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The 2019 Board Decision is without fault. The proposed judicial review does not have realistic prospects of success.

Conclusion

49.  In the premise and having considered the 2019 Board Decision, the 2014 DOI Decision and the 2017 DOI Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the BOR 2 Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.

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