TURLA RONNIE DELIM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2863/2019

[2024] HKCFI 2152

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2863 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:

Introduction

1.  This is an application by Mr Turla Ronnie Delim (the “Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (the “Board”) dated 12 September 2019 (the “Board’s Decision”) when the Board affirmed the decision of the Director of Immigration dated 17 April 2019 (the “DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (the “Claim”).

Background of the Applicant

2.  As set out in the DOI Decision and the Board’s Decision, the Applicant is a citizen of the Philippines.  He was born on 5 April 1972.

3.  His parents had passed away.  He has 2 siblings.  He was married with 5 living children.  His wife and 4 children lived in the Applicant’s family house at Pampanga.  His eldest son had married and moved to another address also at Pampanga. 

4.  From 1980 to 2009, the Applicant worked in a motor shop in Pampanga.  He came to work in Hong Kong in around 2009.  He last entered Hong Kong on 1 October 2013 with leave as a domestic worker.  That leave was subsequently extended until 3 March 2014 and he thereafter remained in Hong Kong without leave.

The Claim

5.  The Applicant claimed that if he returned to the Philippines, his life would be in danger because of land dispute with a land grabber (the “Grabber”).  For all the years, the Applicant’s family had heated arguments with the Grabber because of the land on which his family house was built (the “Land”).  The Grabber had been trying to intrude the Land by occupying the land nearby.  He used bamboo fences to surround his land and from time to time moved the fences into the Land for his advantage.

6.  The Grabber was living in the same town and he had a distant relative working for the police.  The Applicant only knew that the Grabber had many criminal cases and he had stabbed a number of people. The Applicant did not know other background of the Grabber.

7.  In around 2008, the Grabber suddenly came to the Applicant’s family house one day with around 10 to 12 men who were armed with knives and steel pipes.  They swore at the Applicant.  Heat arguments ensued.  Three of the Grabber’s men hit the Applicant with steel pipes whilst one of them stabbed the Applicant at his back.  The Applicant was hospitalized for around 2 weeks.

8.  The Applicant’s brother reported the incident to the Lubao Municipal Police.  No action was taken by the police.  When the Applicant later followed up with the prosecutors’ office, he found that the police had not filed any record of his report earlier.

9.  In around 2009, the Applicant decided to come to Hong Kong to earn a better income.  Three months after the Applicant arrived in Hong Kong, his wife told him that the Grabber was still intruding the Land and had threatened to kill the Applicant if he saw the Applicant. Apart from the threat, the Grabber and his men had not inflicted any other ill-treatments on the Applicant’s wife or other family members.

10.  Since coming to Hong Kong, the Applicant had returned to Philippines on 4 occasions in January 2011, December 2011/January 2012, June and September 2013.  The visit in June 2013 was to Baguio City, a place far from his hometown.  On other occasions, he lived in his family house during his stays.

11.  He contacted his wife one week before his interview with the Immigration Officer on 12 April 2019 when his wife told him that she hadn’t heard anything from the Grabber or from other about him.  The Applicant said that the silence scared him.

12.  The Applicant claimed that his life would be in danger because of the land dispute if he returned to the Philippines.

Procedural history

13.  The Applicant was last permitted to stay in Hong Kong until 3 March 2014.  He did not depart on or before 3 March 2014 and had overstayed in Hong Kong since then.  He surrendered to the Immigration Department on 28 August 2018.  By a written representation of 20 December 2018, the Applicant lodged the Claim. 

14.  The Director of Immigration (the “Director”) had considered the Claim on all applicable grounds under the United Screening Mechanism (“USM”), namely:

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

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of section 8 of the Hong Kong Bill of Rights, Cap. 383 (the “BOR”) (“BOR 2 risk”);

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

(d)  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”).

15.  By the DOI Decision, the Director refused the Claim.  The Applicant later filed an appeal/petition to the Board (the “Appeal”).  By the Board’s Decision, the Board affirmed the DOI Decision. The Board rejected and dismissed the Appeal.

16.  On 30 September 2019, the Applicant filed the Form 86 herein (the “Form 86”) seeking leave for judicial review of the Board’s Decision.  The Applicant named the Board as the proposed respondent in the Form 86.

17.  The Applicant filed his supporting affidavit on 30 September 2019 (the “Supporting Affidavit”).

18.  On 21 June 2024, the Applicant filed another affidavit applying to withdraw this intended judicial review application stating that all his problems back home had finished and his brother was very sick (the “Withdrawal Application”).

The DOI Decision

19.  After considering all the relevant circumstances, the Director was of the view that there was no reasonable likelihood that the risk of harm from the Grabber as the Applicant perceived was real and foreseeable.

20.  Despite the long running dispute with the Grabber concerning the Land, the Grabber and his men had only assaulted the Applicant once in 2008.  The Director was of the view that the low frequency of ill treatment from the Grabber was no indication of a strong will to seriously harm the Applicant or kill him.

21.  There was no sufficient evidence to substantiate that the Grabber or his men would have any real intention to harm or kill the Applicant.  If the Grabber really had such intention, it was unreasonable that the Applicant could stay safely in his family house after the 2008 incident and he could eventually depart from the Philippines in 2009 without being intercepted by them.

22.  After the Applicant had left the Philippines, the Grabber continued to intrude the Land but he and his men had not taken any adverse actions to harm the Applicant’s family members who were still remaining in his family house.  The Applicant also did not encounter any troubles from the Grabber when he stayed in his family house during his aforesaid visits to the Philippines after 2009.  There was no substantial ground for believing that the Applicant would be harmed by the Grabber if he returned to the Philippines.

23.  The Applicant did not know about the background of the Grabber.  He even could not confirm the name of the Grabber.  At different times, he referred to different names as the Grabber.  The Director was of the view that the Applicant’s claim was based entirely on speculation or hearsay with no supportive evidence and it was the Applicant’s self-induced fear that the Grabber was still in pursuit of him.  The Director did not accept that the Applicant would be subject to any risk of harm from the Grabber if he returned to the Philippines.  The Director also did not accept that the Applicant’s claimed fear of being harmed or killed by the Grabber was present, real and imminent.

24.  After considering the relevant country of origin information (“COI”), the Director formed the view that the availability of state protection would further lower or negate the level of risk.  The COI showed that the Philippine authorities were willing and did take actions to protect the rights of her citizens, and also there were channels to make complaints.  There was no evidence to show that the Philippine police were unwilling or incapable of providing reasonable protection to the Applicant. Even if the Grabber had a distant relative working for the police, there was no evidence to show that the police and other authorities in the Philippines would be unable or unwilling to discharge their duties or tolerate any unlawful and abusive behaviour committed by any perpetrators as a systematic practice.  The Director was of the view that the Applicant’s experience of encountering the alleged inaction of the Lubao Municipal Police Station, even if established, appeared to be isolated case of misconduct or criminality as opposed to a general pattern of the police behaviour representing all Philippine police or the state on the whole.

25.  The Director further assessed that internal relocation alternatives were available which would further lower or negate the perceived risk.

26.  The Philippines is a country spread across 300,000 sq. km. with an estimated population of over 105 million people as at July 2018.  Internal relocation is permissible under the Philippine law. The Applicant has many options for relocation in Philippines, such as Cebu City and Quezon Provision.  It would be very difficult for the Grabber to locate him among such a large population and in such a large country, not to mention there was no evidence that the Grabber had any widespread resources to trace the Applicant over the entire territory of the Philippines.

27.  The Director was of the view that being an able-bodied man with years of working experience, it would not be considered unduly harsh for the Applicant to relocate to area other than his locality to sustain his living and to prevent any perceived risk of feared treatment. 

28.  For the aforesaid reasons, the Director did not accept that the Applicant would face a real and personal risk of being subjected to ill-treatment prohibited by BOR 3 upon his return to the Philippines.  The Director also found that the Applicant failed to establish a personal and real risk of being arbitrarily deprived of his life in violation of BOR 2 upon his return to the Philippines.

29.  The Director considered that the ill-treatment feared by the Applicant does not fall within the ambit of persecution risk.   It arose from private dispute over the ownership and the right to use the Land between the Applicant and the Grabber and had nothing to do with any authority of the Philippines.  It also has nothing to do with race, religion, nationality, membership of a particular social or political opinion. The Director did not accept that the Applicant’s fear was well-found.  The Director assessed that the Applicant’s case did not warrant non-refoulement protection on the grounds of persecution risk.

30.  For reasons set out in the DOI Decision, the Director did not accept that there were substantial grounds for believing that the Applicant would be subject to torture by the Grabber upon his return to the Philippines. 

31.  There was no evidence to show that the feared harm was/would be inflicted by or at the instigation of, or with the consent or active/passive acquiescence of a public official or other person acting in an official capacity.  Judging from the fact that the Applicant could depart the Philippines without hindrance, it was apparent that he was not a target of the Philippine government.

32.  For the reasons set out in the DOI Decision, the Director rejected the Claim.

The Board’s Decision

33.  The Board was of the view that the Applicant’s initial statement was very brief and contained almost no detail at all.  In response to detailed, open questions from the Board at the oral hearing, the Applicant was unable to provide even the most superficial detail of the key elements of his claim.  The Board was of the view that his account was vague, colourless and without the type of detail which might be indicative of lived rather than learned experience. 

34.  The Applicant provided no reasonable explanation for the different names of the Grabber given in the initial application and then in the interview with the Immigration Officer and before the Board.  The Board considered this to be a very significant negative credibility indicator, going to the central and core element of the Applicant’s claim.

35.  Furthermore, the Applicant provided no reasonable explanation for not claiming protection after he came to Hong Kong in 2009 until 2018 and his voluntary returns to his family house after he came to Hong Kong.  These actions appeared to the Board not to be those of a person genuinely in fear of any form of harm.  

36.  The Applicant also could provide no explanation as to why his wife and children were still able to live on the Land and had experienced no difficulties in the intervening decade if he was in fear of attack by a man who wanted to take over the Land.

37.  The Board formed the view that the Applicant was not a witness of truth and that none of the events he had described ever took place.

38.  The Board found that the only fact which the Applicant managed to establish before the Board was that he is a national of the Philippines and none of the background information suggested any reason why the Applicant would face any form of harm merely by dint of that status.

39.  The Board found that the Applicant had failed to establish his case on all applicable grounds under the USM.  The Board affirmed the DOI Decision and dismissed the Appeal.  

Legal principles applicable to judicial review

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

41.  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”.

42.  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

43.  The Applicant did not advance any grounds for his intended judicial review in the Form 86.  He only stated that: “I don’t want to go home.”  In the Supporting Affidavit, the Applicant only stated that he was the applicant and produced the Board’s Decision as exhibit to the Supporting Affidavit. 

44.  No proper ground for his intended challenge was stated in the Form 86 and/or the Supporting Affidavit.  The Applicant did not provide any particulars or specifics as to how the Board had erred in the Boards’ Decision in affirming the DOI Decision, or in what way was the Board’s 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. 

45.  Having rigorously examined the Board’s Decision, the DOI Decision and the Supporting Affidavit with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed very high standards of fairness. 

46.  The Board found that the Applicant was not a witness of truth and that none of the events he had described ever took place.  It was on such basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection under any of the four applicable grounds under the USM.  These are finding of facts which are exclusively within the province of the Board, which the court on a judicial review will not interfere save when such findings involved errors of law, procedural unfairness and irrationality.  In this case, the court does not detect any error pf law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Board’s Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The Board’s Decision is without fault.  The proposed judicial review is not reasonably arguable.   

The Withdrawal Application

47.  The Applicant subsequently filed the Withdrawal Application on 21 June 2024 stating that all his problems back home had finished.

48.  There is no evidence to show that the Applicant made the Withdrawal Application other than out of his own volition.

49.  Apart from the Withdrawal Application, there is nothing outstanding in this action.

50.  The Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 at §19(1) that:

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

Conclusion

51.  In the premises and having considered the Board’s Decision and the 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 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 his 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