TAMAYOR MELBEN SAM ATADERO v. TORTURE CLAIMS APPEAL BOARD

HCAL 893/2022

[2026] HKCFI 2336

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 893 OF 2022

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 42-year-old national of the Philippines 17 May 2019 who arrived in Hong Kong on as a visitor with permission to remain as such up to 31 May 2019 when he did not depart and instead overstayed, and more than 15 months later on 28 September 2020 he surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if he returned to the Philippines he would be harmed or killed by some local drug syndicate for providing information to the police against the syndicate. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Ajuy, Iloilo, the Philippines.  After leaving school he worked as a driver to make his living, married his wife and raised a family with 4 children in Binalbagan, Negros Occidental.

3.  In 2016, he was hired by a man as his driver driving his employer in his employer’s vehicle to various villagers in the neighborhood, but several months later one night he was visited by several police officers who informed him that his employer was in fact part of some drugs syndicate and that he was suspected to have driven his employer everywhere to deliver drugs and hence was at risk of being arrested together with his employer which was about to happen soon, and so the Applicant provided all the information he knew about his employer to the police, and on the following day he immediately resigned from his job and left town to avoid any suspicion by moving back to his parents’ home in Ajuy, Illoilo.

4.  On 17 May 2019, the Applicant travelled to Hong Kong for vacation, during which he was informed by his wife in the Philippines that some members of the drug syndicate had come looking for him after the police had launched massive arrests against the syndicate during which some of the gang members had been shot and killed, and that the surviving gang members suspected that the Applicant had provided information to the police that led to the arrests, and hence they were looking to kill him in revenge, and so the Applicant was afraid to return to the Philippines and therefore overstayed in Hong Kong and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 13 May 2021 and attended screening interview before the Immigration Department with legal representation.             

5.  By a Notice of Decision dated 16 July 2021, the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of 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”).

6.  In his decision, the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real and substantial risk of him being harmed or killed by those remaining members of the drug syndicate upon his return to the Philippines due to the absence of any past ill-treatment from them, that in any event state or police protection would be available to the Applicant if resorted to and in particularly that he had assisted the police against the syndicate, 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 110 million people spread across a vast territory of more than 300,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home district in large cities such as Davao or Cebu City where it would be difficult if not impossible for anyone to locate him.

7.  On 28 July 2021, the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 21 June 2022 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 19 August 2022 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision[1], the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from any members of any drug syndicate that caused him to leave his country to come to Hong Kong to seek protection, that even if his account of events prior to his departure of the Philippines were true that there was no reliable evidence of any intention of the syndicate to seriously harm or kill him, and that in any event state or police protection would be available to the Applicant upon his return to the Philippines as well as reasonable internal relocation alternatives for him to move safely to other parts of the country away from his home district without any risk of being located by anyone that his claim for non-refoulement protection failed on all applicable grounds.    

9.  On 8 September 2022, the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or his supporting affirmation of the same date to which he just attached a copy of the decision but without putting forth any proper ground for his intended challenge, nor was he able to do so at the hearing of his application. As such, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge of the Board’s decision.

10.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the 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 in their decisions being clearly and properly 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.

11.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in his claim even if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of the Philippines, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                

12.  In the premises, and having considered the decisions 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.

13.  As I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly 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