MOCKIAT JOHNSON ACKIADAN v. TORTURE CLAIMS APPEAL BOARD

HCAL 1042/2023

[2025] HKCFI 1310

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1042 OF 2023

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 / the Applicant being absent in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 40-year-old national of the Philippines who arrived in Hong Kong on 8 September 2019 as a visitor with permission to remain as such up to 22 September 2019 when he did not depart and instead overstayed, and was arrested by police more than 2 years later on 6 February 2022. 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 members of 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 Cervantes, Ilocos Sur, the Philippines. After leaving school he assisted his family in farming in his home village to make his living.

3.  In January 2011 he joined the NPA in protest against the government’s decision to relocate his home village to make way for building a dam in the location, but later when he realized that NPA would resort to violence in their campaign against the government which may also harm innocent people, the Applicant in 2018 decided to quit the group together with some of his fellow members, and thereafter he went to Baguio to look for his cousin, but when he later heard that some of those members who left the group with him had been shot dead by NPA, he feared that he would also be killed by them for quitting the group, and so on 5 September 2019 he departed the Philippines for Macau, and on 8 September 2019 he came to Hong Kong and subsequently overstayed, and upon his arrest by the police more than 2 years later on 6 February 2022, he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 14 April 2022 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

4.  By a Notice of Decision dated 26 May 2022 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of 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”).

5.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real and substantial risk of him being harmed or killed by the NPA upon his return to the Philippines due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any adverse interest of the NPA in him other than hearsays or his own speculation, 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 110 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 Quezon City or Davao City where it would be difficult if not impossible for those NPA people to locate him.

6.  On 1 June 2022 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 17 March 2023 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 21 June 2023 his non-refoulement claim and appeal were rejected and dismissed by the Board which also confirmed the Director’s decision.

7.  In its decision the Board found material inconsistencies discrepancies and implausibility in the Applicant’s claim and evidence that it did not consider him to be a credible witness and rejected his claim that he was ever a member of the NPA or that he had ever been under any threats from any NPA members or people that it concluded that he had fabricated his claim so as to create a basis upon which to apply for non-refoulement protection, that the credibility of his claim was further undermined by his failure to raise it upon first arriving in Hong Kong until more than 2 years later and only after he was arrested by the police, and concluded that there is no possibility whatsoever that anything he had asserted can be given any credence at all that his non-refoulement claim failed on all applicable grounds.

8.  On 28 June 2023 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or in his supporting affidavit of the same date to which he just attached a copy of the decision but without putting forth any proper ground for his intended challenge. As such, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

9.  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.

10.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 27 – 40 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

11.  Furthermore, the fact is that it has also been established by the Director in his 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 him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

12.  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.

13.  Moreover, the Applicant recently on 13 January 2025 filed an affirmation requesting to withdraw his application as he wants to return to the Philippines but without providing any further explanation as to what has happened to his claimed risk in his home country.

14.  In the premises, as I am for the stated reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I 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