HERMOSA ARNOLD TOLENTINO v. TORTURE CLAIMS APPEAL BOARD

HCAL 2692/2019

[2025] HKCFI 2115

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO.2692 OF 2019

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 be refused.

Observations for the Applicant:

1.  The Applicant is a 49-year-old national of the Philippines who arrived in Hong Kong on 20 February 2014 as a visitor with permission to remain as such up to 6 March 2014 when he did not depart and instead overstayed, and was arrested by police on 24 March 2014. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim for protection on the basis that if he returned to the Philippines he would be harmed or killed by the terrorist group New People’s Army (“NPA”) for deserting the group. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Metro Manila, the Philippines. In 1991 at the age of 15 and while still in school he joined the NPA after being attracted by their proclaimed ideology without his parents’ knowledge, and spent time receiving training in one of their camps in a mountain in Montalban.

3.  However, after spending 3 years in the camp during which he was taught to use weapons to harm and kill people, the Applicant started to have doubts over the purpose of being a member of NPA, and after being assigned a mission to kill a targeted person but whom he subsequently did not have the heart or courage to carry out, the Applicant together with 9 other members started to form plans to leave the group.

4.  One night in mid-1996 during some celebration held in their camp when everybody was drinking alcohol, the Applicant together with his fellow members made their escape from the camp, during which some of those members were shot and killed by other NPA members, but the Applicant managed to hide in the bushes and eventually made his way to Antipolo and Marikina to take shelter in a friend’s place.

5.  The Applicant later in 1997 moved to San Mateo where he subsequently got married and raised his family with his children, but he was always worried about being located by the NPA, and one day in 2006 when he was told by his neighbors that some unknown men had been asking about him, the Applicant suspected that they were sent by NPA to kill him, and so he made plans to leave the country, and eventually on 20 February 2014 he departed the Philippines for Hong Kong where he subsequently overstayed, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 7 May 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 23 June 2015 the Director of Immigration (“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 the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

7.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from the NPA upon his return to the Philippines as low due to the absence of or low intensity and frequency of past ill‑treatment from them, that there is no evidence of any intention of them to harm or kill him or even any adverse interest that they may still have in him after almost 20 years since he left the group in 1996, that in any event the NPA is regarded as a terrorist group by the Philippines government that state or police protection would be available to the Applicant if resorted to, and that reliable and 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 across a vast territory of more than 300,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home district in large cities such as Pampanga or Cebu where it would be difficult if not impossible for anyone to locate him.

8.  On 3 July 2015 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 5 July 2016 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 13 April 2017 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from the NPA that caused him to leave his country to come to Hong Kong to seek protection when he did not raise his claim upon first arriving until only after his subsequent arrest by the police, that despite having allegedly spent more than 5 years receiving training in one of NPA’s camp that he was unable to give any details of the history or composition or ideology of NPA that it is not accepted that he had ever been a member of or being involved with the NPA, and that even if his account of events prior to his departure of his home country were true that nothing at all had happened to him in the Philippines for some 18 years from 1996 when he allegedly deserted NPA up to 2014 when he left the country that it is not accepted that the NPA would still have any adverse interest in him after all these years or that he would face any real risk of harm from them upon his return to the Philippines that it concluded that his claim for non-refoulement protection failed on all applicable grounds.

10.  The Applicant never sought any leave to apply for judicial review of this decision of the Board, and meanwhile the Director by a letter dated 23 May 2017 invited him to submit any additional facts which he may consider relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection, including any other absolute and non-derogable rights under HKBOR including right to life under Article 2 (“BOR2” and “BOR 2 Risk”), and upon receiving and considering further information submitted by the Applicant in respect of alleged threats from NPA, the Director by a Further Decision dated 3 August 2017 also rejected his BOR 2 Claim upon finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR including right to life under BOR 2 being violated upon his return to the Philippines.

11.  On 21 August 2017 the Applicant again lodged an appeal to the Board against the Director’s Further Decision, but as his Notice of Appeal was filed outside the 14-day period required under Section 37ZS (1) of the Immigration Ordinance, and in pursuance of Section 37ZT (2) of the Ordinance, the Board proceeded to decide as a preliminary decision without a hearing whether to allow the late filing of the Applicant’s Notice of Appeal, and upon finding that it was late by 4 days which was not significant, but given its previous unchallenged findings made in its earlier decision which rejected the credibility of the Applicant’s claim under all the other applicable grounds, and in the absence of any special circumstances which may make it unjust not to allow the late filing of the Notice of Appeal, the Board by a Decision dated 15 August 2019 refused to allow the Applicant’s application for late filing of his Notice of Appeal.

12.  On 16 September 2019 the Applicant filed his Form 86 for leave to apply for judicial review of this second decision of the Board, and put forward various grounds for his intended challenge of which he confirmed at the hearing as follows:

(1)  That the Board reached the decision wrongly in assessing his non‑refoulement claim as the decision was not fair or reasonable as required by the Wednesbury test in failing to recognize that his life must be protected by the criminal law from extra-judicial killings that he may face if deported back to his home country;

(2)  That the Board failed to appreciate or place proper or sufficient weight or importance to the presence of State Acquiescence in his case which led to an unfair outcome of rejecting his claim without realizing that he was tortured at the behest of the state law enforcement agencies and politicians that the state would be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(3)  That the Adjudicator acted unreasonable and was procedurally unfair by placing too much reliance on COI but failed to take into account the Applicant’s personal background and experience in assessing his claim;

(4)  That the Board had listed relevant COI which supported the Applicant’s aversions that the police in his country would not be able to protect but failed to consider or give sufficient weight to such evidence and instead ruled otherwise against the Applicant’s case which was a clear case of unfair attitude shown by the Board which in itself is enough to render its decision void;

(5)  That the Board failed to attain the high standard of fairness required by the Wednesbury test in failing to take into account the Applicant’s argument that corruption and incompetency of the administration in the Applicant’s country is still a very serious problem as various human rights organizations had compiled reports that stated testament to the Applicant’s assertions;

(6)  That the Adjudicator was procedurally improper and unfair when assessing whether or not to accept the Applicant’s explanations and unreasonably required him to respond to questions that he was not in a position to offer any response;

(7)  That the Adjudicator failed to take into account the nexus of political parties and official corruption which exist in the Applicant’s country making the persecution of the Applicant effectively persecution by the State;

(8)  That the Adjudicator made a ruling to dismiss the Applicant’s appeal based on findings which the Adjudicator ought to allow and thus the decision was irrational.

13.  These are however all just bare and vague assertions of the Applicant containing a few key words or phrases but without any relevant or necessary particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational in its decision not to allow the late filing of his Notice of Appeal, or for that matter as regard the 1^st decision of the Board which the Applicant never sought any judicial review, or as regard that decision as to how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy were state acquiescence or extra‑judicial killings to the Applicant’s case or what evidence is there to suggest that the Applicant has ever been tortured by law enforcement agencies or politicians when on the factual basis of even his own case that it was a personal dispute between him and the NPA only without any official involvement or political element at all. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for his intended challenge.

14.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

15.  In the Applicant’s case, the Board in its first decision rejected his non-refoulement claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 13 – 60 of that decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, while in its second decision the Board also correctly refused to allow the late filing of his appeal as regard his BOR 2 claim on the basis of its previous findings made in its first decision including the merits of the Applicant’s claim and appeal and which was never challenged by the Applicant by way of judicial review, and in the absence of any error of law or procedural unfairness in his process before the Board or in either of its decisions being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the findings of the Board in either decisions.

16.  Furthermore, the fact is that it has also been established by the Director in his earlier decision that the risk of harm in the Applicant’s claim even if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of the Philippines, a decision also agreed and confirmed by the Board, there is simply no justification to afford the Applicant with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

17.  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 non‑refoulement claim or in the Board’s refusal of the late filing of his notice of appeal as regard his BOR 2 risk.

18.  For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review of the second decision of the Board, or for that matter of its first decision either, I therefore refuse to grant leave and accordingly 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