DALIGDIG MANNY FERNANDEZ v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1522/2019

[2024] HKCFI 1379

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1522 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 Applicant being present in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 20 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 did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, I shall deal with his 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 52, is a Filipino. He last arrived in Hong Kong as a visitor on 19 March 2018. He overstayed since 3 April 2018 and he surrendered to the Immigration Department on 13 August 2018. The applicant made a non-refoulement claim by written submission on 16 August 2018 and by an undated written submission received by the Immigration Department on 19 September 2018. The claim was made on the basis that, if refouled, he would be harmed or killed by the Philippine military force because they suspected that he supported the National People’s Army (“NPA”). He also feared harm from NPA as they suspected that he was an informant for the military force.

5.  According to the applicant, while he was working as a farmer, the military and NPA members came to his hometown for food and drinks. As he entertained people from both groups with water and food, both suspected him to be a spy for another group. On 12 February 2016, the applicant was warned by NPA members that he would killed if they found out that he provided information to the military. In or about May 2016, he was threatened by the military that he would be harmed or killed if he was found to be a NPA member or related to NPA. Since he faced threats from both the military and NPA, he considered that his life was in danger and his family advised him to escape abroad.

6.  On 5 November 2016, the applicant saw two men with bonnet and long firearms approaching his hut. He immediately escaped through the window and hid himself in the forest until morning. He then reported the incident to the barangay captain, who told him that he should leave for his safety. The applicant then relocated to Metro Manila between 7 November 2016 and 13 September 2017, where he worked as a janitor from March 2017 to October 2017. On one occasion, three men came looking for him in Metro Manila, but he did not know whether they were from NPA or the military force (“the three men incident”). The applicant then relocated to various places within the Philippines and went to Macau for a month on 15 September 2017. Eventually, he left the Philippines for Hong Kong on 19 March 2018.

7.  The applicant had never thought of seeking state protection because he was scared to ask for help. He also considered internal relocation within the Philippines not viable because both the military force and the NPA had members all over the country, so that he could be easily located.

8.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 21 December 2018 (“the Director’s Decision”).

The Director’s Decision

9.  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”).

10.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that the absence or low intensity and frequency of past ill-treatment from both the military and the NPA indicated a small future risk of harm upon his return to the Philippines. In any event, his perceived risk of harm from the military and the NPA was far-fetched given the fact that he was allowed to depart for Macau and Hong Kong freely and that nothing eventful happened to him while he relocated within the country [11] - [13].

11.  Furthermore, (i) state protection will be available to him upon his return [14] - [16]; (ii) internal relocation is viable [17] - [18] and (iii) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [19] - [24], Persecution risk [25] - [29] or Torture risk [30] - [32].

The Board’s Decision

12.  The applicant appealed the Director’s Decision to the Board. On 15 March 2019, the Board conducted an oral hearing.

13.  During the hearing, the applicant confirmed that he worked as a janitor in Manila from March to October 2017, in which he worked irregularly after the three men incident on 3 July 2017 [82] - [85]. He stayed in Metro Manila from November 2016 until September 2017 [86] while also constantly relocating within the country between July and September 2017 [88]. After staying in Macau for a month in September 2017, he returned to the Philippines and lived with a high school friend from October 2017 until he left for Hong Kong [89].

14.  The applicant claimed that he relocated away from his hometown to stay with his relatives after receiving the threats by NPA in February 2016 [94]. After meeting the military in May 2016, they kept him under constant surveillance and visited him many times [96], [105]. Although the applicant no longer stayed in his hut at his hometown, he occasionally returned to visit his plants. During one of those visits on 5 November 2016, he was approached by two men while he was at his hut. He also claimed that the two men opened fire at him when he jumped out of the window [98] - [100].

15.  The Board found the applicant’s claim in relation to the visit by the two mysterious men on 5 November 2016 unpersuasive [113]. It also noted inconsistency as to the time when he worked as a janitor in Manila and his place of residence [116] - [119]. The Board was of the view that both the military and the NPA would not waste resources to track him down and kill him simply because he provided food and drinks to the other side. In any event, the military could track him down by his ID when he was working as a janitor in Manila while NPA could not have come to Manila because they were an illegal organisation [120] - [121].

16.  Based on the findings above, the Board considered that the applicant was not a witness of truth and had fabricated claims in relation to the military and NPA [110]. It did not accept that the applicant had been suspected or threatened by both the military and the NPA in the past. The Board concluded that the applicant was safe to return to the Philippines without facing any of the proscribed types of harm [122] - [128].

17.  The Board held that the applicant’s case failed to meet any of the requirements under Persecution risk [2] - [10], [132], Torture risk [11] - [15], [129] or BOR 2 and BOR 3 risk [16] - [20], [130] - [131]. It 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

18.  The applicant has filed Form 86 dated 4 June 2019 for leave to apply for judicial review of the Board’s Decision.

19.  In his affidavit in support of his application, the applicant did not raise any specific ground.

DISCUSSION

20.  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).

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

22.  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.”

23.  For the reasons above, the Board disbelieved the applicant’s evidence and dismissed his appeal. In my view, the Board was entitled to form its views on the evidence before it. The applicant has not been able to raise any valid ground to challenge the Board’s Decision. There is no reason for this Court to interfere with the Board’s finding of the facts.

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

CONCLUSION

25.  I refuse to grant leave to 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