BABO MICHAEL CUNANAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1757/2019

[2024] HKCFI 1981

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1757 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 15 May 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 asked for a hearing.  However, he was absent at the hearing on 12 June 2024 without prior notice to the 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 43, is a Filipino.  On 2 May 2016, he entered Hong Kong as a visitor.  He overstayed since 17 May 2016 and he surrendered to the Immigration Department on the same day.  On 26 August 2016, the applicant was convicted of the offence for breach of condition of stay and was sentenced to imprisonment of 14 days suspended for 3 years.  He made a non-refoulement claim in November 2016.  The claim was made on the basis that, if refouled, he would be harmed or killed by members of True Brown Style (“TBS”) because he had tried to quit from them.

5.  According to the applicant, he joined TBS in around 1997.  Although TBS was a legal organization, some of its members were engaged in illegal activities.  On one occasion, the applicant was even asked by someone from TBS to sell drugs.  In around 2002, the applicant tried to quit TBS.  However, as he had been in TBS for some time and knew their mischief, they did not want him to quit as they were afraid that the applicant would report the same to the police.

6.  The applicant had a neighbour who used to sell drugs for some TBS members.  His neighbour told him in 2014 that he wanted to quit TBS, but he was subsequently killed in 2015.  The applicant believed that his neighbour was killed by TBS as they did not want someone who knew about their illegal activities to quit.  In November 2015, the applicant received a verbal threat from a TBS member, warning him that he would be killed because he knew TBS’s illegal activities.  The applicant was worried that he would suffer the same fate as his neighbour, so he came to Hong Kong in May 2016.

7.  While in Hong Kong, the applicant was informed that there were still some people going to his home asking for his whereabouts.  The applicant had never reported the matter to the police as some of the TBS members were also police officers, so that he was afraid that they would find out and retaliate against him.  He also considered internal relocation not viable because TBS had branches all over the Philippines, so that there was a high possibility that he would be located.

8.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 17 September 2018 (“the Director’s Decision”).

The Director’s Decision

9.  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”);

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”); and

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

10.  By way of the Director’s Decision, the Director dismissed the applicant’s claim.  The Director found that (i) the absence or low intensity and frequency of past ill-treatment from TBS members indicated that his perceived risk of harm was not as imminent and substantial as claimed [11]-[12]; (ii) state protection would be available to him upon his return [14]-[16]; (iii) internal relocation would be viable [13], [17]-[19] and (iv) the applicant’s case failed to meet any of the requirement under BOR 2 and BOR 3 risk [20]-[25], Persecution risk [26]-[30] or Torture risk [31]-[33].

The Board’s Decision

11.  The applicant appealed the Director’s Decision to the Board.  On 14 March 2019, the Board conducted an oral hearing.   

12.  The Board considered that the applicant was not a witness of truth and that he had fabricated his claim given his inconsistent evidence as to when he joined and intended to quit TBS as well as the duration for being its members [93]-[99].  It also found the correlation between the applicant’s decision to flee the Philippines and the death of his neighbour ambiguous [100]-[101].  Furthermore, given the lack of country of origin information in relation to TBS, the Board were of the view that it was of a much smaller outfit than that as claimed by the applicant [102]-[103].

13.  The Board found that the applicant was never a member of TBS nor had any association with the organization.  Given such findings, the Board did not believe that the applicant fled the Philippines because of the claimed risk of harm and that whether his neighbour was killed by TBS also became irrelevant [105]-[108].

14.  Based on the findings above, the Board held that the applicant’s case failed to meet any of the requirements under Persecution risk, Torture risk or BOR 2 and BOR 3 risk [2]-[20], [111]-[114].  The applicant’s appeal was therefore dismissed and the Director’s Decision was confirmed.

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

15.  The applicant has filed Form 86 dated 25 June 2019 to apply for leave to apply for judicial review of the Board’s Decision.

16.  In his affidavit in support of his application, the applicant did not raise any specific ground.

DISCUSSION

17.  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).

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

19.  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.”

20.  For the reasons the Board had given above, the Board did not accept the applicant’s facts in support of his claim.

21.  The applicant has not raised any valid ground to challenge the Board’s Decision.

22.  The applicant therefore fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

CONCLUSION

23.  I refuse to grant leave to 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