RAGUSANTE RODRIGO JR. CAC v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1671/2019

[2024] HKCFI 1546

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1671 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 the Applicant being absent in open court.

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applied for leave to apply for judicial review of the Decision dated 24 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. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, a hearing date of 24 April 2024 was fixed for him to appear before the Court.  However, he was absent. Then, the court received a return mail of the notice of hearing to the applicant from the Post Office.  The Court made enquiry with the Immigration Department of the latest address of the applicant.  The Immigration Department replied that the address in the previous mail is the last known address.  In the circumstances, the applicant is deemed to have received the notice of hearing.[1]  I shall deal with the 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 46, is a Filipino. He last arrived in Hong Kong to work as a foreign domestic helper on 9 October 2010. His contract was prematurely terminated on 6 December 2010 and he overstayed since 21 December 2010. The applicant was arrested by the police on 16 March 2017 and he made a non-refoulement claim on 18 March 2017. The claim was made on the basis that, if refouled, he would be harmed or killed by a drug dealer (“the drug dealer”).

5.  According to the applicant, he was a chairman of the Sangguniang Kabataan Organisation (“the Organisation”) between 1996 and 2002. One of the campaigns organised was aimed at fighting against drugs. In or around May 2000, the Organisation organised an event called “SK Night”. The drug dealer attended the event as a friend of a member. After a few rounds of drinks, the drug dealer got drunk and became agitated. He swore at the applicant and even threatened to kill him.

6.  A month later, the applicant received an anonymous letter warning him to be careful and behave, otherwise he would be killed. He deduced that the letter was sent by the drug dealer as he had no other enemies. In 2002, the applicant was promoted to the chairperson of 4H Club Federation (“the Club”). He continued his campaigns against drugs until 2004 when he reached the age limit. Thereafter, he took up some odd jobs in the catering industry and had no more anti-drug duties.

7.  In July 2010, the applicant received another anonymous threatening letter, the content of which was similar to the one he received in 2000. He was worried about his safety and decided to flee the Philippines after discussion with his family. He first arrived in Hong Kong in August 2010, after which he went to Macau while waiting for his working visa. In October 2010, he returned to Hong Kong to work as a foreign domestic helper.

8.  The applicant maintained contact with his family on regular basis and he was told that there were unknown people looking for him back in the Philippines.

9.  The applicant considered internal relocation within the Philippines not viable because he had no relatives or friends who could offer him a shelter in the long term. Furthermore, he could be easily located by the drug dealer within the country given his widespread network. The applicant was also of the view that the police in the Philippines sided with people who were wealthy and politically powerful, but would not offer any assistance to an ordinary citizen like him.

10.  Details of the applicant’s story can be found in paragraph 7 of the Director’s Decision dated 21 February 2018 (“the Director’s Decision”).

The Director’s Decision

11.  The Director considered the applicant’s claim in relation to the following risks:

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

b.  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”);

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

d.  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”).

12.  By way of the Director’s Decision, the Director dismissed the applicant’s claim.  The Director found that (i) the low intensity and frequency of past ill-treatment from the drug dealer indicated his perceived risk of harm upon return to the Philippines would unlikely materialise [13]; (ii) state protection would be available to him upon his return [14]-[16]; (iii) internal relocation would be viable [17]-[18] and (iv) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [19]-[24], Persecution risk [25]-[30] or Torture risk [31]-[34].

The Board’s Decision

13.  The applicant appealed the Director’s Decision to the Board. On 30 November 2018, the Board conducted an oral hearing.

14.  During the hearing, the applicant stated that he had encountered the drug dealer once in the market before receiving the second threatening letter in 2010.  The applicant also mentioned that he saw from the social media that an anti-drug organisation leader was shot dead and he feared that he would suffer from the same fate upon returning to the Philippines [9].

15.  The Board considered that the centrepiece of the applicant’s claims lacked in details, unsupported by documentary evidence, implausible and/or simply defy logic [12]. It only accepted the background information related to the applicant [13], but did not accept that the drug dealer wanted to seriously harm or kill him by reason of his previous role in the Organisation and the Club [23].

16.  In any event, even if the applicant’s claimed version of events was accepted, the Board was of the view that the drug dealer merely lost his temper and vaguely threatened the applicant once in 2000 during “SK Night”. There was also no evidence suggesting that the threatening letters were related to the drug dealer and the applicant’s family members had never suffered any harm throughout all these years [23].

17.  Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [14]-[17], [24], Torture risk [25]-[31] or Persecution risk [32]-[40]. Furthermore, state protection and internal relocation were also available to the applicant [18]-[23].

18.  The Board therefore dismissed the applicant’s appeal and confirmed the Director’s Decision.

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

19.  The applicant has filed Form 86 dated 18 June 2019 for leave to apply for judicial review of the Board’s Decision.

20.  In his affidavit in support of his application, the applicant said the Board had disregarded his dangerous situation.

DISCUSSION

21.  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).

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

23.  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.”

24.  For the reasons given by the Board above, the Board dismissed his appeal. The applicant is unable to raise any valid ground to challenge the Board’s Decision.

25.  There is no reason that the Court should interfere with the Board’s finding of the facts.

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

CONCLUSION

27.  I refuse to grant leave for 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