ARELLANO RONALDO GONZAGA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2027/2019

[2024] HKCFI 3124

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2027 OF 2019

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 10 June 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. 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 56, is a national of the Philippines. He came to Hong Kong as a visitor on 4 June 2016. He was allowed to stay until 18 June 2016. He overstayed and surrendered to the Immigration Department. He lodged non-refoulement claim on the basis that, if refouled, he will be harmed or killed by Serrano, a mayor of the town he lived at the time because he was suspected to run away with Serrano’s money for touting votes in a presidential election in 2016.

5.  According to the applicant, his party member Edwin David told him that Serrano wanted to buy votes from the voters. Serrano had given David 800,000 pesos, of which 200,000 was given to the applicant and David kept the rest. However, David did not pay money to the voters, and as a result, Serrano lost his election. He tried to avoid Serrano. Serrano’s bodyguards advised him to leave the country or he might be killed if located by Serrano. He therefore came to Hong Kong.

6.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 26 September 2018 (“the Director’s Decision”).

The Director’s Decision

7.  The Director considered the applicant’s claim in relation to the following risks:

a. 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”);

b. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”);

c. 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”); and

d. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”).

8.  By way of the Director’s Decision, the Director dismissed the applicant’s claim on Torture risk, Persecution risk, BOR 2 and BOR 3 risk. The Director found that if he returned to the Philippines, (i) the level of risk of being harmed or killed by Serrano would be low [12]-[14]; (ii) state protection would be available [15]-[18]; and (iii) internal relocation would be viable [19].

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board. The Board conducted a hearing on 8 March 2019. Having considered the evidence, the Board agreed with the Director in respect of the applicable risks [27]-[43]. It came to the conclusion:

“44. For reasons set out above, the Appellant has failed to establish that he is entitled to non-refoulement protection under torture risk, BOR 2 and the Refugee Convention. His claim that he faces torture risk, BOR2 and BOR 3 risks, persecution risk on his return to the Philippines are rejected.

The appeal is dismissed and the Decision of the Immigration Officer of 26 September 2018 is confirmed.”

Application for leave to apply for judicial review of the Board’s Decision

10.  The applicant has filed Form 86 dated 16 July 2019 for leave to apply for judicial review of the Board’s Decision.

11.  In his affirmation in support of his application, the applicant did not raise any specific ground to challenge the Board’s Decision.

DISCUSSION

12.  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).

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

14.  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.”

15.  The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded. There is no valid ground from the applicant to challenge the Board’s Decision.

16.  There is no reason that the Court should interfere with the Board’s finding of the facts.

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

DISPOSITION

18.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.