AMAZEN ALFRED DAWAAYEN v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 889/2017

[2018] HKCFI 702

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 889 of 2017

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 refused.

Observations for the Applicant:

1.  The applicant is a 36-year-old Filipino who arrived in Hong Kong on 22 October2014 with permission to remain as a visitor until 5 November 2014 when he did not depart but overstayed until 18 August 2016 when he was arrested by the police.  On 23 August 2016 he pleaded guilty to the offence of breaching the condition of stay and was sentenced to six-weeks imprisonment suspended for three years. Whilst he was being detained by the Immigration Department he raised his non-refoulement claim on 7 September 2016 on the ground that he would be harmed or killed by his family members and the Bago tribe for being a gay man if he is refouled to the Philippines.

2.  The applicant was born in Philex Mines, Tuba, Benguet, the Philippines where his father was a mining worker who passed away in 2015, with his mother since moved to Bangar, Rosario, La Union, the Philippines.  He has two elder siblings with his sister now married and residing in Hong Kong while his elder brother still lives in the Philippines.  

3.  The applicant realized that he is gay when he was in in his teens and was frequently being teased by his elder brother at home and his schoolmat5es at school for his feminine behavior, and he always tried to hide his true sexual identity from his family and in particularly his neighbors most of whom were of Bago tribe who are said to be homophobic and reject gay people.

4.  His homosexuality became more apparent by the time he entered secondary school when there were occasions that his elder brother was being teased at school for having a gay brother and he would come home upset and hit him. One day in 1996 his father confronted him at home and demanded him to confess his true sexuality, and when he admitted to be gay his father hit him in front of the other family members and dragged him outside their house and hung him upside down from a tree for half an hour before releasing him with a warning that if he did not change he would kill him next time.

5.  After that incident he felt being rejected by his family and a few days later he dropped out of school and left his family to take up shelter at his friend’s place in QuezonCity, Manila for two weeks before moving to Sagada, Mountain Province where he workedas a houseboy to earn his living until 1998 when he moved to Taguig, Metro Manila where he continued with his studies and part-time work as a houseboy.     

6.  After completing secondary school he went on to college but dropped out in 2007 when he could no longer afford it and started to work in beauty salons in various places such as Luzon, Baguio City and Quezon City in Manila, and in 2010 he was invited by his sister to visit her in Hong Kong where he stayed for a short while before returning to the Philippines.

7.  One day in about 2011 or 2012 while he was walking with several of his gay friends in Manila, they were teased by a couple of boys on the street for being gay who then started to throw things at them with one of his friends being struck by a bottle in the head before the boys fled when the police arrived at the scene.  Although he was not injured in the incident the applicant was shaken by the attack and became fearful for his safety, and in September 2014 after visiting a friend in Macau, he decided not to return to the Philippines and instead came to Hong Kong in October 2014 where he overstayed until his arrest by the police in August 2016 when he subsequently lodged his non-refoulement claim with the Immigration Department.

8.  By a Notice of Decision dated 28 December 2016 the Director of Immigration (“the Director”) rejected his claim on all applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of absolute and non-derogable rights under the Hong Kong Bill of Rights Ordinance (“HKBOR”), Cap 383 including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) 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”).

9.  In his detailed decision the Director found that the low intensity and low frequency of past ill-treatment from the applicant’s family and the Bago tribe is indicative of a low future risk of harm to him upon his return to the Philippines, that the availability of state protection further lowers or negates the level of risk based on objective Country of Origin Information (“COI”) which show that reforms have been and are on-going in the Philippines leading to positive results in recent years including a number of government and non-government agencies providing support to LGBT groups and individuals and some cities having legislated anti-discrimination ordinances, and that internal relocation alternatives are available to the applicant that it would not be unduly harsh or unreasonable for him being an able-bodied adult to relocate to other parts of the Philippines. 

10.  On 27 February 2017 the applicant appealed to the Torture Claims Appeal Board (“the Board”) and attended an oral hearing on 13 October 2017 when he appeared in person before the Board during which he gave evidence and answered questions put to him by the Board.  On 9 November 2017 his appeal was dismissed by the Board which also confirmed the earlier decision of the Director.

11.  Whilst it accepted that the applicant is gay and that there have been several incidents arising from that fact, the Board considered that his fears are not well-founded or substantiated at all, as they were all isolated incidents with no consistent or persistent patterns of threats or harms being perpetrated against him despite amble opportunities forhis brother or father to do so when they were living together, both of whom the applicant admitted at the hearing that they never meant him any real harm and that his father has since passed away, and while the Bago tribe people may have disapproved or even disowned him for being gay, the Board found no evidence at all that to suggest that they intended to cause any serious harm to him, and concluded that there is simply no real or substantial risk to the applicant to return to the Philippines. 

12.  Nevertheless on 15 November 2017 the applicant filed his Form 86 for leave to apply for judicial review of the decision of both the Director and the Board, and in his supporting affidavit of the same date he set out the grounds for his intended challenge which can essentially be summarized as follows:

(a)  failure to find that as a gay man he would be at great risk and danger of being rejected, humiliated and harmed in the Philippines; 

(b)  failure to make proper inquiries of or reliance on COI to support or substantiate such risks to the applicant if he is to return to the Philippines;

(c)  failure to properly assess from the COI whether the reforms by the Philippines government are effective in protecting gay people like him in the Philippines; and

(d)  wrongly just focusing on the risk of physical harms instead of also considering or assessing the psychological harms to him as a gay man in the Philippines. 

13.  None of these grounds however in my view has any merit, as rightly pointed out by the Board, generic evidence of adversity or risks faced by gay people in the Philippines alone does not constitute ground for determining that the applicant will be in danger of being subjected to ill-treatment upon his return to the Philippines, as he must show that he himself will be personally at risk, as the Board explained in its decision:

“ 31. Even if the situation in his home state is as bad as the applicant says it is, that alone is not sufficient to protect him from refoulement. He must also show additional grounds that he will personally be at risk. The principle that generic evidence alone will not suffice was held by the courts in the United Kingdom. In Vilvarajah the court was presented with generic evidence in the form of country reports purporting to show that the removal of the applicants to Sri Lanka would be in breach of Article 3 of the Convention for the protection of Human Rights and Fundamental Freedom. At paragraph 111, the Court held:

‘ 111. The evidence before the Court concerning the background of the applicants, as well as the general situation, does not establish that their personal position was any worse than the generality of other members of the Tamil community or other young male Tamils who were returning to their country. Since the situation was still unsettled there existed the possibility that they might be detained and ill-treated as appears to have occurred previously in the cases of some of the applicants (see paragraphs 10, 22 and 33 above). A mere possibility of ill-treatment, however, in such circumstances, is not in itself sufficient to give rise to a breach of Article 3 (art. 3).’

In the case of Mamatkulov and Askarov, the European Court of Human Rights also recognized that, at paragraph 71–73:-

‘ 71. For an issue to be raised under Article 3, it must be established that at the time of their extradition there existed a real risk that the applicants would be subjected in Uzbekistan to treatment prescribed by Article 3.

72. The Court has noted the applicants’ representatives’ observations on the information in the reports of international humanrights organizations denouncing an administrative practice of tortureand other forms of ill-treatment of political dissidents, and the Uzbek regime’s repressive policy towards such dissidents. It notes that Amnesty International stated in its report for 2001: ‘reports of ill-treatment and torture by law enforcement officials of alleged supporters of banned Islamist opposition parties and movements … continued …” (see paragraph 55 above).

73. However, although these findings describe the general situation in Uzbekistan, they do not support the specific allegationsmade by the applicants in the instant case and require corroboration by other evidence.’”   

14.  The same view was held by our Court of Appeal in TK v Jenkins [2013] 1 HKC 526 when Cheung CJHC stated in paragraph 29 of its judgment:

“Whilst the decision-maker must take into account all relevant considerations including, where applicable, the existence in the country concerned of ‘a consistent pattern of gross, flagrant or mass violations of human rights’ (art 3(2) of the CAT), that alone does not as such constitute a sufficient ground for determining that a particular person will be in danger of being subjected to torture upon his return to that country. Additional grounds must exist to show that the person will be ‘personally at risk’. This is because the aim of the determination under the CAT is to establish ‘whether the individual concerned would be personally at risk of being subjected to torture in the country to which she would return’. …”

15.  As has been found by both the Director and the Board, and even on the applicant’s own case, there was no consistent pattern of abuse directed by his brother or father towards him while they were still living together some 20 years ago, and with the passing of his father there is simply nothing to suggest that his brother would still be holding the same attitude or view against him today, and the same can be said about his Bago tribe neighbors even in the unlikely event of him returning to live in his home town from where both his mother and sister have already moved away.

16.  Equally of significance is that again as found by both the Director and the Board, the applicant has fallen way short of establishing that he is at risk of facing ill-treatment even of a minimum level of severity, either physically or mentally, let alone a genuine and substantial risk of being subjected to such ill-treatment in order to bring himself within the scope of Article 3 of HKBOR, as evidenced by what he stated to the Board in his Notice of Appeal as recorded in paragraph 36 of the Board’s decision:

“ The Appellant in his Notice of Appeal stated that ‘do I need to wait them for me to be physically beaten and suffer much to prove that I have really fear of my life.’ …”

17.  Furthermore, it is plain that both the Director and the Board did already take proper consideration of the relevant COI in their objective assessment of the alternatives of internal relocation to the applicant including of the fact that the Bago tribe people constitute just a relatively small population in the entire country, and the ample evidence of the recent advancement and improvements which have been made in the Philippines for the well-being and protection of gay people as detailed in both of their decisions, and given the fact that none of the perpetrators being the applicant’s family members and members of the Bago tribe are state agents or actors, there is simply no basis or merit for the applicant to criticize their assessments of the availability or reasonableness of internal relocation alternatives open to him to return to the Philippines such as those cities where he used to live and work mostly free of incidents including Quezon City, Tuguig City and Manila. 

18.  Accordingly and with rigorous examination and anxious scrutiny, I am unable to see any error in law or procedural unfairness in either decision of the Director or the Board, or any failure on their part to apply high standard of fairness in their assessment of the applicant’s claim.  In the premises and for these reasons, I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I therefore refuse his leave 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