GALANG JOAN SIGUA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1502/2019

[2024] HKCFI 1253

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1502 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 23 May 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s 2^nd Decision as described below (“the Board’s Decision”).

2.  The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High 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 56, is a Filipino. He last arrived in Hong Kong as a visitor on 20 October 2003.  He overstayed since 4 November 2003 and was arrested by the police on 18 January 2009.  He made a torture claim on 19 January 2009, which was rejected on 3 May 2012 (“the Director’s 1^st Decision”).  The applicant appealed the Director’s 1^st Decision to the Board, which dismissed his appeal on 31 May 2012.  On 19 January 2015, 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 Alberto Arellano (“Alberto”), who was a member of the New People’s Army (“NPA”), because the applicant had an affair with Alberto’s wife, Melody Mangoba (“Melody”).

5.  According to the applicant, he first met Melody in Hong Kong in June 1999 and started a relationship with her.  At the material time, Melody had separated with Alberto though they were still in a legal marriage.  After Alberto learnt about their relationship at around late 1999, he threatened Melody’s parents that he would kill the applicant and Melody.  On 25 December 2001, the applicant and Melody went back to the Philippines for a holiday. On 29 December 2001, while the applicant was staying in Melody’s home with her and her parents, they heard a few gunshots. They were subsequently informed by their neighbours that Alberto fired the gunshots while being accompanied by a few NPA members. The applicant reported the gunshots to the village chief the next day, but the chief did not take any further action.

6.  The applicant went back to his hometown and reported the death threat by Alberto to the police station at his locality on 2 January 2002. He did not however report the gunshot incident, as he feared that he might be taken back to Melody’s hometown to assist in the investigation. He could not spare time for such, as he needed to come back to Hong Kong the following day to take up his employment.  The applicant had heard nothing from the police since then and he suspected that they had neglected the case.

7.  In January 2012, Melody’s parents heard from their neighbours that Alberto was still threatening to kill the applicant and Melody.  Yet, Alberto never approached or did anything to Melody’s parents directly.  Melody also learnt from her children that Alberto intended to take the applicant’s lives once they returned to the Philippines.  In around January 2018, Melody received a Facebook message from a person who described himself as “prosecutor Noel of the provincial prosecutor Ilocos Sur”, enquiring whether she knew Alberto as such information was required in the report of the Regional Trial Court. Melody did not dare to reply that message to avoid further trouble. 

8.  The applicant was of the view that the police would unlikely take an action because they did not want to go against NPA.  He claimed that NPA would even kill government soldiers. The applicant also considered internal relocation within the Philippines not viable as NPA had members all over the country, so that they could easily locate him.

9.  Details of the applicant’s story can be found in paragraphs 9-12 of the Director’s Decision dated 26 March 2018 (“the Director’s 2^nd Decision”).

The Director’s 2^nd Decision

10.  Apart from the torture claim as decided in the Director’s 1^st Decision, 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 the absence of past ill-treatment from Alberto indicated that the applicant faced a small future risk of harm upon his return to the Philippines. In any event, there had been an elapse of 19 years so that the risk of harm should have dissipated and became minimal. The applicant’s substantial delay in seeking protection was also inconsistent with that of a person genuinely in fear [18]-[20].

12.  Furthermore, the Director was of the view that (i) state protection will be available to him upon his return [21]-[26]; (ii) internal relocation is viable [27]-[31] and (iii) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [32]-[36] or Persecution risk [37]-[42].

The Board’s Decision

13.  The applicant appealed the Director’s 2^nd Decision to the Board. On 10 January 2019, the Board conducted an oral hearing.

14.  The Board did not consider the applicant a credible witness or that aspects of his claims were credible. Firstly, there was a significant delay on his part in making the claim, which suggested his intention to remain in Hong Kong rather than fearing harm in the Philippines. The fact that he and Melody returned to Philippines for holiday in December 2001 was also inconsistent with his claimed threat from Alberto earlier. Furthermore, there was a lack of independent supporting corroboration for the applicant’s claim. His feared harm from the NPA was vague and also unreliable, considering that the NPA members simply ran away to avoid the applicant’s neighbours when the former were supposed to be terrorists. Having considered the evidence, the Board did not accept that:

(1)   the applicant was a credible witness;

(2)   the applicant feared harm from Alberto and members of the NPA if he returned to the Philippines;

(3)    he and Melody had been subject to a shooting incident carried out by Alberto and his members of the NPA on 29 December 2001 when they were in the Philippines;

(4)   his claim that members of Melody’s family had received death warnings from Alberto;

(5)   his claim that members of the NPA would seek to harm him on the basis of his claim; and

(6)   his claim that he could not return to the Philippines because he feared harm from Alberto and members of the NPA. [87-93]

15.  Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk or Persecution risk [10]-[25], [95]-[107].

16.  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

17.  The applicant has filed Form 86 dated 3 June 2019 for leave to apply for judicial review of the Board’s Decision.

18.  In his affidavit in support of his application, the applicant said the Board disregarded his dangerous situation.

DISCUSSION

19.  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).

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

21.  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.”

22.  For the reasons given in paragraph 14, the Board dismissed the applicant’s appeal. The reasons given by the applicant in paragraph 18 is not valid to challenge the Board’s Decision.

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

CONCLUSION

24.  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