LORENTE JOEL RAPINAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2333/2019

[2025] HKCFI 701

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2333 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 oral submissions by the Applicant in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 13 August 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 9 August 2019 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 11 October 2018 (the “Notice”), refusing his non-refoulement application.

Background

2.  The Applicant is a Filipino national.  He last entered Hong Kong on 30 August 2014 and overstayed since 14 September 2014.  He was arrested on 23 August 2016 for overstaying.  On 8 February 2017, he made a non-refoulement claim.  In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk^[1]; BOR 3 Risk^[2]; Persecution Risk^[3]; and BOR 2 Risk^[4]. His application was rejected by the Director’s Notice.  His appeal was dismissed by the Board’s Decision.  He now applies for judicial review of that Decision.

The Applicant’s case

3.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (the “NCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer.  In gist, he claims that if returned to the Philippines, he will be harmed or killed by his enemy (“Rolando”) and his associates, as he is unable to repay money to Rolando.   

4.  The Applicant came to know Rolando in 2006.  Rolando was a politician and a rich businessman in Camarine Sur.  He was also the Mayor of the Third District of Camarine Sur between 2007 and 2010.  In May 2013, Rolando appointed the Applicant as his campaign manager for the Applicant’s home area.  Rolando gave the Applicant 600,000 Philippine pesos (“PHP”) cash to buy votes from voters in the Applicant’s home village. The Applicant then gave 200 PHP each to 3,000 voters in his village in exchange for their verbal promise to vote for Rolando.

5.  Subsequently, Rolando lost the election.  Shortly afterwards, he demanded the Applicant to return him the 600,000 PHP.  The Applicant lodged a complaint with the Barangay captain in the Bula Fabrica, Camarine Sur against Rolando on 8 June 2013, but the Barangay captain took no follow-up action.  In the afternoon of the same day, three associates of Rolando (“Pilo”, “Carding”, and “Gabor”) went to his home to demand repayment and threatened to kill him if he did not return the money.  They left without injuring him.

6.  On 29 June 2013, Rolando demanded the Applicant to return the money, or he and his family members would be killed.  The Applicant was scared because Rolando had connection with the New People’s Army, a rebellious group that had frequent clashes with the Philippine government army. Out of fear, he first moved to his grandmother’s place in Minalabac and later to his own place in Bula Fabrica to avoid Rolando.

7.  One day in July 2013, Pilo met the Applicant’s brother in the Bula market.  Pilo pointed a pistol at his head and told him to tell the Applicant that if he did not return the money, he and his brother would be killed.  The Applicant’s brother later reported the incident to the Naga City police station.  However, the police did not take any further action, as no one was willing to be a witness testifying the incident. 

8.  Although the Applicant was never physically harmed by Rolando, he worried that he would be killed by Rolando or his associates if returned to the Philippines, as he had no money to pay Rolando.  Moreover, Pilo continued to go to the Applicant’s home to look for him and ask his family for his whereabouts.       

9.  The Applicant claims that state protection is not available because the police in the Philippines are corrupt.  He does not believe internal relocation viable, as Rolando could locate him throughout the country through his powerful network.

The finding of the Board

10.  The Applicant testified before the Board.  The Board seemingly accepted his evidence and assessed his claim on the basis of the account as he asserted.  It found that Rolando and his associates only verbally threatened the Applicant, but did not inflict actual physical harm on him.  Although Pilo pointed a pistol at his brother’s head, his brother was not hurt in the incident.  When he was hiding in Minalabac, nothing eventful happened to him.  After he left the Philippines in 2014, he was not confronted by Rolando or his associates, he only heard that Pilo was looking for him.  He was not harmed or hurt by any of them.  Hence, the Board concluded that his fear of Rolando and his associates was based on his own assertion without concrete evidence in support, and his pain and suffering did not attain the level of severity to constitute ‘torture’.

11.  The Board found that the alleged threats arose out of the dispute of a monetary dispute, which is purely a private matter between the Applicant and Rolando, who was not acting in any official capacity at all.  In any event, on the basis of objective country of origin information (“COI”), the Board accepted that reasonable state protection is readily available to the Applicant in the Philippines.

12.  In the circumstances, the Board found that there could not possibly be any substantial grounds for finding that the Applicant faced a real risk of ill-treatment if refouled to the Philippines.  Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found the Applicant had failed to establish the factual basis to support his claims for protection under any of the applicable grounds.  Hence, it dismissed his appeal against the Director’s Notice.

Legal principles applicable to judicial review

13.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[5].

Grounds for judicial review

14.  The Applicant did not advance any grounds for judicial review in Form 86.  In his supporting affirmation, he reiterated that his life would be in danger if refouled to the Philippines.

15.  At the hearing, after the above legal principles have been explained to him, the Applicant confirmed he had no complaint about errors of law, procedural unfairness or irrationality in the Decision.

Overall scrutiny

16.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, this Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  The Board assessed the Applicant’s claim on the basis of his case as he asserted.  It was on that basis that the Board found there could not possibly be any substantial grounds for finding that the Applicant faced a real risk of ill-treatment if refouled to the Philippines.  Then, applying the law to the above finding of fact, the Board came to the conclusion that the Applicant was not entitled to non-refoulement protection under any of the four applicable grounds under the USM. These are mixed finding of facts and of the law.  Insofar as the finding of the law is concerned, the Board is absolutely correct.  Insofar as finding of facts are concerned, they are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge his burden of proving his fears and risks.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success.

Conclusion

17.  For the above reasons, the leave application is refused.

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

[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[3] Risk of persecution by reference to the non-refoulement principle under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[5] [2018] HKCA 524 at [14(1)]