LABRADOR NOLITO BLAZADO v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 859/2017

[2018] HKCFI 941

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 859 of 2017

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;     or
	consideration of the documents and oral submissions by the Applicant in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The applicant is a 48-year-old national of the Philippines who last arrived in Hong Kong on 13 February 2008 with permission to remain as a visitor until 27 February 2008 when he did not depart and instead overstayed until he was arrested by the police on 24 March 2008.  After he was referred to the Immigration Department for investigation, he lodged his torture claim on 13 August 2009 on the basis that if he returned to the Philippines he would be harmed or killed by the guerrilla group New People’s Army (“NPA”) for refusing to join them.  He has since been released on recognizance pending determination of his claim.

2.  The applicant was born and raised in Nabua, Camarines Sur, the Philippines where he worked in his uncle’s farm growing rice and married his wife with four children.  In about October 2007 his brother-in-laws who worked in the air force came to his village to visit his family.  A few days after they left several NPA men approached the applicant and asked him to join their group, and when he refused, they just left.

3.  However, several days later the same men came to the applicant’s home and took him away to a mountainous campsite of the NPA where he was kept and beaten until he pretended to agree to join them and was told to go and kill his brother-in-laws.  Upon returning home the applicant did not report the matter to the police for fear that the NPA might take revenge against him and his family, but he decided to move his family out of the village to take shelter at the air force base in Manila where his brother-in-laws worked, and when he was still concerned about the NPA people looking for him, he was advised by his cousin who happened to be a resident in Hong Kong that he should leave the Philippines for his own safety and that he could help him to come to Hong Kong, which he did and arrived in Hong Kong on 13 February 2008 when he subsequently overstayed and raised his torture claim, for which he later completed a Non-refoulement Claim Form and attended screening interview before an Immigration Officer with legal representation under the Duty Lawyer Service. 

4.  By a Notice of Decision dated 23 April 2015 the Director of Immigration (“the Director”) rejected the applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), 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 (“HKBOR”), Cap 383 (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1051 Convention relating to the Status of Refugees (“persecution risk”).

5.  In his decision the Director found the applicant’s account of his encounters with the NPA men vague, inconsistent and unreliable, but even if it is true the level of risk of him being harmed by NPA men was assessed as low as the Philippines government has since launched national counter-insurgency military actions against the NPA and that their top leaders have been arrested, that state and police protection would be available to him upon his return to the Philippines, and that objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in the Philippines with a large population of 107 million people spread over a vast territory of more than 298,000 square kilometers that it would not be duly harsh for the applicant to move away from his home village to areas such as Quezon City, Manila or San Roque where his wife and children have since his departure moved to live safely without any disturbances from NPA. 

6.  On 4 May 2015 the applicant filed his appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 28 June 2016 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 21 February 2017 his appeal was dismissed by the Board which also confirmed the Director’s decision.

7.  In its decision the Board also found the applicant’s account of his encounters with the NPA people vague and unreliable and for the reasons set out in paragraphs 5 – 17 concluded that he is a dishonest and unreliable witness, that after all these years that what remains of the NPA would still be looking for him all over the Philippines, and that there is no risk for him in the circumstances to return to anywhere in the Philippines other than his home village where he can safely live without undue hardship. 

8.  On 17 March 2017 the Director by a letter invited the applicant to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection in particularly any other absolute and non-derogable rights including right to life under Article 2 of HKBOR (“BOR 2 risk”).  On 29 March 2017 the applicant responded to state that he was warned by his wife that he should not return to the Philippines as the NPA people are still looking to kill him.  On 7 April 2017 the Director considered that the applicant has failed to establish any personal or real risk to his absolute and non-derogable rights under the HKBOR including right to life under BOR 2 risk being violated upon his return to the Philippines, and again rejected his non-refoulement claim.

9.  On 13 April 2017 the applicant appealed to the Board against that decision of the Director on the same ground that he has been warned by his wife that his life would still be at great risk in the Philippines.  On 3 November 2017 his appeal was again dismissed by the Board on the basis that there were no additional facts or information to support his claim under BOR 2 risk.

10.  On 8 November 2017 the applicant filed his Form 86 for leave to apply for judicial review against both decisions of the Director and the Board, and in his supporting affirmation of the same date he stated these grounds for his intended challenge summarized as follows:

(1) procedural impropriety on the part of the Director and the Director for failing to conduct an oral hearing for his claim under BOR 2 risk;

(2) procedural impropriety on the part of the Director for failing to conduct any screening interviews for his claim under BOR 2 risk;

(3) error of law on the part of both the Director and the Board for failing to properly assess his claim under BOR 2 risk;

(4) error of law on the part of the adjudicator for the Board to properly consider the new facts provided by him in his consideration of his claim under BOR 2 risk; and

(5) error of law on the part of the Director and the Board to make sufficient inquiry into COI to properly assess the effectiveness in government reforms to provide protection and reliefs in Philippines. 

11.  For the first two grounds in which the applicant complains of not being given any oral hearing or screening interviews for his claim under BOR 2 risk, the Court of Appeal has held that there is no absolute right to an oral hearing as the question must depend on the standard of fairness required, the nature of the decision-making process in question, the procedural history of the matter including whether there has been an oral hearing before, the interest at stake and the importance of the decision, the issues involved and how the presence or absence of an oral hearing would affect the quality of the opportunity to make worthwhile or effective representation: ST v Betty Kwan [2014] 4 HKLRD 277 at paragraph 26. 

12.  Here the applicant had earlier already attended a screening interview at the Immigration Department and an oral hearing before the Board, and as explained by both the Director and the Board in their decision, when the applicant was merely repeating his claim as before without providing any additional facts which may be relevant to BOR 2 risk, and given their findings against his claim on credibility, both the Director and the Board are in my judgment entitled to conclude that in the circumstances another screening interview or oral hearing would not be necessary or justified for their consideration of his claim under BOR 2 risk, and I do not find anything amiss arising from the non-availability of further screening interview or oral hearing in the process of their assessment of the applicant’s claim.

13.  As for grounds (3) and (4), as noted above the only new fact submitted by the applicant relevant to BOR 2 tisk is his wife’s warning on the phone that the NPA people were still looking for him and to kill him which both the Director and the Board correctly found to be the same claim as before, and given their findings against him as to his credibility, and for those reasons fully set out in their decisions, I do not see any merit in the applicant’s complaints under these grounds.

14.  Regarding the last ground of the applicant over insufficient inquiry into COI as to effectiveness of state protection in Philippines, the applicant has not provided any particulars or specifics for his complaint, and upon careful examination of the COI listed and referred to by the Director in particularly those relating to the NPA situation in the Philippines which have also been taken into consideration by the Board, I do not find any merit in this complaint of the applicant either. 

15.  In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

16.  For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and accordingly I refuse his leave 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