GARCIA FREDDIE LUZON v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1575/2018

[2020] HKCFI 1331

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1575 OF 2018

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:

Procedural history

1.  The applicant entered Hong Kong legally on 5 November 2008 and should have left by 20 November 2008 but overstayed.  He was arrested by the police on 26 March 2009 and transferred to the Immigration Department.  The applicant submitted a non-refoulement claim by way of written representation on 28 March 2009.  He was released upon recognisance on 4 April 2009 and submitted his non-refoulement claim form on 23 June 2014.  The applicant attended a screening interview on 11 September 2014.  The Director of Immigration (“the Director”) dismissed his claim on all grounds (not including that under BOR 2) by Notice of Decision (“the Decision”) on 31 October 2014 and by Notice of Further Decision (re BOR 2) on 19 April 2017.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr Wesley Wong (“the Adjudicator”), heard his appeal on 3 July 2015.  The Adjudicator considered his appeal on all applicable grounds not including BOR 2 and refused that appeal on 13 December 2016.  The applicant subsequently also appealed the Further Decision which was considered by the Adjudicator on the papers as it was out of time.  An extension of time was not granted and the application for late filing of Notice of Appeal was dismissed on 17 July 2018.

2.  The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 8 August 2018 and did not request an oral hearing.  The matter was therefore considered on the papers.

Background

3.  The applicant is a Filipino national.  He was born on 31 October 1986, in the Quezon province of the Philippines.  He is married with no children and had a job as a product label checker.  In 2008, the applicant witnessed the murder of a neighbour and saw the two perpetrators but did not recognise them save for the fact that he believed that one of them worked as a body guard for someone running for mayor. Instead of reporting the incident, the applicant left town and went to his work place, which he says is some two hours’ drive away.  His family then reported to him that they had received two anonymous notes through the door of their home, threatening his family if he were to disclose what he had seen.  The applicant himself says he received an anonymous text in the same terms.  As a consequence, they did not report the incident or the notes to the police.  When the applicant believed that the men had finally found him at his work place in Canlubang, the applicant decided to leave the Philippines.  He maintains that he has no idea what happened in the resulting murder investigation nor to who won the mayoral election and had not enquired about either with his family despite the fact that it was the reason he left the Philippines.  He confirmed that he had come to no harm in Canlubang or in any other area whilst waiting to obtain a passport.

The non-refoulement claim

4.  Under the Unified Screening Mechanism (“USM”), the applicant’s claim is to be assessed on all applicable grounds which are:

i.     Risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”).  Under torture risk, the applicant must establish he has substantial grounds for believing he will be subjected to torture if returned to his home state.  Those grounds cannot be speculative or theoretical and the risk of torture must be real and personal.  The standard of proof is a low one.

ii.     Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“the HKBORO”), Cap 383 and Article 7 of the ICCPR (“BOR 3 risk”).  Under BOR 3, the applicant must establish that he has a genuine and substantial risk of being subject to mental or physical torture; cruel, inhuman or degrading ill treatment; or punishment, if returned to his home state.  The level of such mental or physical torture etc. must reach a minimum level of severity.

iii.     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”).  Under persecution risk, the applicant must establish that he has a well-founded fear that there is a real chance that he will face persecution based upon race, religion, nationality or membership of a social group or political opinion if he is expelled and returned to his home state.

iv.     Risk of a violation of the right to life under Article 2 of section 8 of the HKBORO, Cap 383 and Article 6 of the ICCPR (“BOR 2 risk”).  Under BOR 2, the applicant must establish a real risk that he will be arbitrarily deprived of his life, have a death penalty imposed upon him; or be the victim of genocide or otherwise be deprived of his rights under BOR 2.

5.  It is the duty of both the Director and the Adjudicator to weigh all of the available credible, reliable evidence and ascertain whether the applicant had established the factual basis of his claim. The Director and the Adjudicator must then assess the level of harm the applicant says he fears.  Each ground of claim above has a relevant level of risk.  It is for the applicant to establish that he is the subject of such risk.  Under the HKBORO, he must show substantial grounds for believing that the harm which he fears is “foreseeable, real, personal and present”.  The question is whether there is a real risk or real chance of the occurrence or recurrence of the harm which he fears.

Decision of the Adjudicator

6.  The Adjudicator analysed the applicant’s claim on all applicable grounds.  He arranged for an oral hearing and treated the appeal as a rehearing.  He correctly set out the law and key legal principles including the burden and standard of proof.  As for the factual basis of the applicant’s claim, the Adjudicator found his evidence unreliable, illogical and contradictory.  By way of example, the Adjudicator found it odd that the applicant could not name the candidate in the mayoral election whom he believed had had his neighbour killed because he was a competitor and as there had been a murder investigation by the local police, there was nothing to suggest that person had interfered in any way with that investigation.  It was not to the applicant’s credit that he could not produce the anonymous notes or the threatening text but in any event this situation, if true, was wholly independent of state agents unless the alleged candidate had later actually been elected to office and was now a threat.  A fact which the applicant did not rely upon and one presumes that he had not been.  Despite that finding, the Adjudicator considered the relevant standard and burden of proof in respect of the three heads of claim to be determined at that time.  As the applicant had not been harmed in any way, was not threatened by any state agency and had not sort official redress for his concerns, the Adjudicator did not find he had proved his claim under torture, BOR 3 or persecution risk. In addition, even if that had been the case, the Adjudicator believed the applicant would be able to re-locate.

7.  The applicant also sought to appeal the Further Decision as to BOR 2 risk.  His appeal was late and he required leave to file late.  That application was dismissed as the applicant had provided no explanation for his delay save to say that he received the Further Decision just two days prior to appealing it.  Without more, the Adjudicator was not prepared to give the applicant the benefit of the doubt as he had no good reason to allow the application.

Leave to apply for judicial review

8.  Judicial review is not a rehearing of the merits of the applicant’s original application for refugee status.  The primary decision makers in a claim for non-refoulement are the Director and the Adjudicator of the TCAB.  They alone assess the evidence and make findings of fact upon matters raised by the applicant and which allegedly give rise to his non‑refoulement claim, such as on risk of harm, availability of state protection and viability of internal re-location.  The role of this court in judicial review is not to re-assess the non-refoulement claim.  This court will review the decision of the Adjudicator and only intervene by way of judicial review where it finds errors of law, procedural unfairness or irrationality.  This being an application to apply for leave to judicially review the decision of the Adjudicator, is for the applicant to show an arguable case that there was either unlawfulness, unreasonableness or unfairness by him when dealing with his application in order to obtain leave to judicially review the TCAB.

Grounds of review

9.  There were no grounds of review.  The applicant seeks a re-hearing of his appeal.  He has not complained of any procedural irregularity, unfairness or unreasonableness.  The applicant has a duty to state the grounds of his intended judicial review and show that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.  I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

10.  Despite the fact that the applicant did not submit any grounds of review, due to the seriousness of the issues at hand, I have considered the papers and grounds carefully. I have not found any error of law or procedure.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout.  Despite the onus being upon the applicant, the Adjudicator engaged in a joint endeavour with the applicant and considered all relevant criteria; gave the applicant a reasonable opportunity to state his case and enquired into that case appropriately.  As for the second appeal, the Adjudicator took cognisance of the test to be applied and without evidentiary proof was not willing to allow late filing.  There can be no criticism of his determination in either regard.  They were open to him on the facts and reasonable[1].

11.  In my judgement, there is no reasonably arguable basis upon which the applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave.  I therefore refuse leave 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