CHALLOY CALVIN CAYNO v. TORTURE CLAIMS APPEAL BOARD

HCAL 627/2019

[2024] HKCFI 1355

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 627 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:

1.  The Applicant is a 38-year-old national of the Philippines who last arrived in Hong Kong on 4 September 2016 as a visitor with permission to remain as such up to 18 September 2016 when he did not depart and instead overstayed, and on 4 October 2016 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 the local drug dealers or syndicates for working as an undercover for the Philippine Drug Enforcement Agency (“PDEA”) that led to the arrest of their people. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Acoje Mines, Sta. Curz, Zambales, the Philippines. After leaving school he worked as a messenger, got married and raised a family with a daughter in his home district.

3.  In 2015 he was invited by a friend to work for the PDEA as an undercover agent with monetary reward for each mission so as to earn some additional income.

4.  One day in January 2016 he carried out a mission for PDEA that led to the arrest of 2 local drug dealers, but shortly after they were out on bail, the 2 drug dealers made death threats against the Applicant, and several days later one evening a group of unknown men came to his home and beat him violently that he collapsed onto the ground, then one of the men pulled out a gun and fired a shot at him but missed and just grazed the side of his head that he lost consciousness and was subsequently taken by his family to the hospital for medical treatments.

5.  Upon his discharge from the hospital, the Applicant became fearful for his life, and so on 4 September 2016 he departed the Philippines for Hong Kong where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 29 January 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 23 February 2018 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”).

7.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no reliable evidence to support his claim of having worked as an undercover agent for PDEA that led to threats from the local drug dealers to cause him to leave his country to come to Hong Kong for non-refoulement protection, that even if such claim were true that the level of risk of harm from those local drug dealers upon his return to the Philippines was assessed to be low due to the low intensity and frequency of past ill-treatment from them, that in any event in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to, 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 104 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 Manila or Cebu where it would be difficult if not impossible for anyone to locate him.

8.  On 6 March 2018 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 30 July 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 20 December 2018 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it rejected the credibility of his claim of fear of harm from the local drug dealers or syndicate that caused him to leave the Philippines to come to Hong Kong to seek protection, that he was not a reliable witness and that his account of events that he claimed to have occurred prior to his departure of the country was not credible, that it had been fabricated by him to create a claim for protection that the Board did not accept that there are substantial grounds to believe that the Applicant would face any risk of being harmed from anyone upon his return to the Philippines, and concluded that his claim for non-refoulement protection failed on all the applicable grounds.

10.  On 5 March 2019 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 in which he just repeated his claim as before of fear of being harmed or killed if refouled to his home country 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.

11.  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.

12.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 42 – 61 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law 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 to challenge the finding of the Board.

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

14.  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.

15.  For all these reasons I am 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