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HCAL343/2018
[2018] HKCFI 2770
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 343 of 2018
BETWEEN
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Portillo Juanito Garces |
Applicant |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
1st Putative Respondent |
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Director of Immigration |
2nd Putative Respondent |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s Decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge Josiah Lam:
Leave to apply for judicial review be refused.
Observations for the Applicant
Background
1. The Applicant is a national of the Philippines. He is now aged 54 (DOB: 24 June 1964).
2. The Applicant claimed he would be harmed or killed by his enemies in the Philippines because he was a witness in a murder case.
3. Between 2003 and 2009, the Applicant travelled among the Philippines, Hong Kong and China to buy goods for resale in the Philippines.
4. One early morning in 2006, the Applicant in the Philippines witnessed five men trying to rape a girl. One of the villains was Jun Mantilla (“Jun”). He was the son of a politician called Senador Mantilla.
5. The girl resisted the villains. She was stabbed. The men then fled. Jun noticed the Applicant and chased after him. The Applicant dared not go home immediately. He went to stay with a friend and returned home two days later.
6. The Applicant learnt the girl had died and Jun had come with the others to look for him. The Applicant dared not approach the police for assistance. He feared Jun would come for him if he reported him to the police.
7. The Applicant left his village and went to Manila to stay with his sister. A week later, his sister said someone had come to look for him. The Applicant then moved to live in different places. He finally left the Philippines.
8. The Applicant came to Hong Kong in October 2006. He returned to the Philippines in November 2006. Nothing happened in the following two years.
9. In October 2008, the Applicant's sister said the same man who had come to look for the Applicant in 2006 appeared again to ask of his whereabouts. That person demanded to see the Applicant. He threatened something would happen if the Applicant refused to meet him.
10. The Applicant was scared. He left the Philippines again on 20 January 2009. On 18 February 2009, he last entered Hong Kong as visitor. He was allowed to stay only for one day. The Applicant overstayed in Hong Kong from 20 February 2009. He surrendered to the Immigration Department four months later on 23 June 2009. On 2 July 2009, he lodged a non-refoulement claim.
11. The Applicant learnt from his parents that Jun was still locating him. Jun and several gang members went to the house of the Applicant's parents to ask of his whereabouts. They threatened to harm them if they would not disclose where the Applicant was. They injured the Applicant’s brother severely and threatened to kill the Applicant if they saw him. The Applicant’s father made a report to the police. However, the police said Jun was a dangerous man and refused to take up the complaint.
12. The Applicant believed the Philippines police would side with Jun because the latter’s father was a politician. He believed Jun’s family had connection with the police. The police had come to look for the Applicant, saying they suspected him to be involved in a murder case in 2006.
13. The Applicant did not think state protection and internal relocation were available to him.
14. In the ensuing two-tier screening process here, the Director of Immigration (“the Director”) and the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”) respectively refused the Applicant’s claim with respect to all the four applicable grounds: (i) risk of torture,[1] (ii) risk of persecution,[2] (iii) risk of torture or cruel, inhuman or degrading treatment or punishment (BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4].
15. On 5 March 2018, the Applicant applied for leave for judicial review.
Timeline
16. Things happened in this order: –
| Oct 2006 |
The Applicant came to Hong Kong. |
| Nov 2006 |
The Applicant returned to the Philippines. |
| 2009-2-18 |
The Applicant last entered Hong Kong as visitor. He was allowed to stay for one day only. |
| 2009-2-20 |
The Applicant began overstaying in Hong Kong. |
| 2009-6-23 |
The Applicant surrendered to the Immigration Department. |
| 2009-7-2 |
The Applicant lodged a non-refoulement claim. |
| 2014-11-12 |
The Director refused the Applicant’s claim with respect to these three applicable grounds: torture risk, persecution risk and BOR3 risk. [“the Director's decision”] |
| 2015-10-27 |
The Applicant appeared before the Board for appeal. |
| 2017-4-20 |
The Director invited the Applicant to submit additional facts for the consideration of BOR2 risk. |
| 2017-5-2 |
The Applicant submitted additional information to the Director. |
| 2017-6-14 |
The Director refused the Applicant’s claim with respect to the fourth applicable ground: BOR2 risk. [“the Director's further decision”] |
| 2017-11-14 |
The Applicant appeared before the Board again. |
| 2018-2-27 |
The Adjudicator refused the Applicant’s appeal with respect to all the four applicable grounds. [“the Board's decision”] |
| 2018-3-5 |
The Applicant applied for leave for judicial review. |
Respondents
17. The Unified Screening Mechanism is a two-tier process. The Director screens an applicant’s non-refoulement claim first; the applicant may appeal to the Board which deals with his/her case on a rehearing basis.
18. In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Board and the Director as respondents. The Board is the first putative respondent; the Director is the second putative respondent.
19. In Re Moshsin Ali, the Court of Appeal states that “the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”[5] The Applicant cannot seek leave for judicial review against the Director's decisions. Therefore, I shall deal with his application in relation to the Board's decision only.
The Director's decision
20. In his decision dated 12 November 2014, the Director did not accept the Applicant faced any torture risk, persecution risk or BOR3 risk. He also considered reasonable state protection and internal relocation were available to the Applicant in any event.
21. In his further decision dated 14 June 2017, the Director did not accept the Applicant faced any BOR2 risk.
The Board's decision
22. The Applicant appealed to the Board. The Adjudicator interviewed the Applicant on 27 October 2015 and 14 November 2017.
23. The Adjudicator found the Applicant could not recall the date of the purported rape/murder incident in 2006. He could not tell the identity of the victim girl. He also could not tell which political party Jun’s father belonged to. The Applicant stated in the additional information submitted to the Director in May 2017 that his mother was confronted by Jun and the police in January/February 2017. However, the Applicant had earlier told the Adjudicator in the 2015 interview that his mother passed away in August 2014. The Adjudicator did not find the Applicant credible. She found the Applicant failed to prove any risk of harm from the alleged enemies. She refused the Applicant’s appeal with respect to all the four applicable grounds: torture risk, persecution risk, BOR2 risk and BOR3 risk.
Grounds of judicial review
24. In his affirmation, the Applicant made complaints against the Director and the Adjudicator. As said paragraph 19 above, I shall deal with his application in relation to the Board's decision only because the Director's decisions had gone on appeal to the Board.
25. The Applicant complained the Adjudicator failed to properly consider the issue of state protection and extended state acquiescence; failed to consider if there was mental torture in his case and wrong to find that he did not have severe suffering; failed to conduct sufficient independent enquiry and critical analysis of relevant country-of-origin information ("COI"); failed to provide justification as to why certain COI was preferred and cherry-picked information.
Court hearing
26. The hearing was scheduled for 13 July 2018 but the Applicant was absent. The court has not heard any explanation from him.
Discussion
27. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
28. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[6] Nevertheless, it is said in Re Islam Rafiqul: –
“The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision-makers are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of 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.” [7]
29. The Applicant accused the Adjudicator cherry-picked information. There were no specifics. I find no evidence that the Adjudicator cherry-picked information.
30. The Applicant complained the Adjudicator failed to properly consider COI and the issues of state protection plus extended state acquiescence. He also complained the Adjudicator failed to take into account his mental stress due to threats from the enemies.
31. The Adjudicator actually found the Applicant incredible. She did not believe the Applicant's claim and thus found him failed to prove any risk that warranted non-refoulement protection. The Adjudicator stated her reasons clearly. She had proper basis for her finding. In light of her finding, the Applicant's alleged fear and suffering (mental or physical) were no real issues. The Adjudicator also need not go on to consider state acquiescence or any COI for the consideration of state protection or internal relocation.
32. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for her finding, conclusion and decision which were not Wednesbury unreasonable. She made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The Adjudicator was acquainted with the facts of the case. She considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim. None of the Applicant’s complaints is substantiated.
Conclusion
33. The Applicant's complaints are not reasonably arguable. He has no realistic prospects of success in the sought judicial review. I therefore refuse to grant him leave for the review.
Dated 24th day of December 2018
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(Alan Ngan)
for Registrar, High Court |
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
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Notes for the Applicant:
If leave has been granted, the Applicant or his solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant on 24/12/2018
Portillo Juanito Garces
Applicant’s ref. no:
Nil.
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 24/12/2018
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
1st Putative Respondent’s ref. no.:
USM 485/14/11/101/F16
Director of Immigration
2nd Putative Respondent’s ref. no.:
QA T/C 480/14 & RBCZ 9001435/17 (formerly RBCZ 1638/09)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] As defined in Part VIIC of the Immigration Ordinance, Cap 115, which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
[2] By reference to the non-refoulement principle under Articles 33 and 1A(2) of the 1951 Convention relating to the Status of Refugees.
[3] Under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] Under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[5] CACV 54/2018, para 45.
[6] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[7] CACV 219/2018 [2018] HKCA 570, para 14(1).
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