MIJARES JERO OLIVEROS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 977/2019

[2023] HKCFI 2154

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 977 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 12 February 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 did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, I shall deal with her 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 is a national of the Philippines.  He entered Hong Kong as a visitor on 11 November 2015 and was permitted to stay until 25 November 2015.  However, he did not depart and had overstayed since 26 November 2015.  On 26 March 2016, he was arrested by the police.  On 28 March 2016, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by the family of his ex-girlfriend.

5.  In short, the applicant and his ex-girlfriend Rowena gave birth to a baby girl in 1994.  However, they belonged to the different religions: the applicant was a Catholic whilst Rowena was a Muslim.  Rowena’s elder brother, Ruel, was outrageous about their relationship and threatened to kill the applicant.  In June 1997, the applicant had a heated argument with Ruel, which led to an assault from Ruel and his friends.  In 1998, the applicant married his new girlfriend and started working for Philippines Airline.  Ruel found out about his work and waited at the location to threaten him.  Thereafter, from 2001 to 2015 when the applicant visited Hong Kong, nothing eventful happened. Yet, as the applicant still feared the threats might be materialized, he decided to seek protection in Hong Kong.  Details of his claim are set out at paragraph 6 of the Notice of Decision dated 29 May 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

6.  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”).

7.  By way of the Director’s Decision, the Director dismissed the applicant’s claim.  In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [11]-[13]; (ii) state protection would be available to him [14]-[15]; and (iii) internal relocation was a viable option [16]-[19].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board.  On 14 December 2018, the Board conducted an oral hearing for his appeal, during which he testified with the assistance of an interpreter [22].

9.  Having considered the evidence, the Board accepted that the applicant had a relationship with a Muslim woman [32].  However, it refused to accept that the applicant would face a real risk of harm because of that relationship. In particular, the Board found that, on his own evidence, the applicant did not indicate that he would face a risk of harm.  He simply stated that it would be difficult for him to adjust and settle in the Philippines after a long time away [33].  Meanwhile, he had no contact with Rowena or her family and the Board found that the adverse interest from Ruel, if any, would have dissipated at least by 1998 [34].  In these premises, the Board rejected the applicant’s claim that he would face a real risk of harm from Rowena’s family [35]-[39].

10.  Besides, the dispute with Rowena’s family was private in nature without state involvement [44]; [55].  As a result, the Board rejected the applicant’s claim and dismissed his appeal.

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

11.  The applicant has filed Form 86 dated 10 April 2019 for leave to apply for judicial review of the Board’s Decision.

12.  In his affirmation in support of his application, he said that he disagrees with the Board’s Decision as it did not accept the danger and threat of his life if he is deported.

DISCUSSION

13.  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).

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

15.  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.”

16.  The Board had considered the applicant’s evidence, and, for the reasons given above, refused to accept that there will be any real risk if he returns to the Philippines. There is no valid ground from the applicant to challenge the Board’s Decision.

17.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

18.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

19.  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