SINOY ARTURO PEREZ v. TORTURE CLAIMS APPEAL BOARD

HCAL 2424/2020

[2025] HKCFI 4545

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2424 OF 2020

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;

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 42-year-old national of the Philippines who arrived in Hong Kong on 26 May 2019 as a visitor with permission to remain as such up to 9 June 2019 when he did not depart and instead overstayed, and on 11 June 2019 he surrendered to the Immigration Department and 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 leaving their group without permission. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Koronadal City, South Cotabato, the Philippines. After leaving school he ran a small business to make his living, got married and raised a family with 3 children in his home district.

3.  Due to insufficient income from his business to support his family, the Applicant in 2017 accepted an invitation form the NPA to join them for training in their camp in return for a monthly salary which he considered useful to supplement his income for the support of his family.

4.  For the following year the Applicant would spend months undergoing training in a NPA camp in the mountains of Sultan Kudarat, but later in 2018 when he started to disagree with some of the goals and policies of NPA, the Applicant one day fled from the camp and ran back to his home district.

5.  However, when he later heard from one of his friends that the NPA people were looking to kill him for leaving without their permission, the Applicant became fearful for his life and fled from his home district to hide in various towns including Tupi and Davao City, and on 26 May 2019 he travelled to Manila and departed the Philippines for Hong Kong where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 21 October 2019 and attended screening interview before the Immigration Department with legal representation.

6.  By a Notice of Decision dated 9 December 2019 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”).

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 people upon his return to the Philippines as low due to the absence of any past ill-treatment from them, that there is no evidence of any real intention of the NPA people to seriously harm or kill him other than hearsays or the Applicant’s own speculations, 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 105 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 Cebu or Iloilo City where it would be difficult if not impossible for anyone to locate him.

8.  On 19 December 2019, 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 16 March 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 25 November 2020, his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision[1], the Board found multiple inconsistencies discrepancies and contradictions in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from any NPA people for leaving their group that caused him to leave his country to come to Hong Kong to seek protection, that it did not consider him to be a credible witness and rejected his claim of ever been a member of or trained with the NPA that it rejected his claim that anyone form the NPA is looking for him or has threatened him or his family or that he will face any real risk of proscribed harm from the NPA people upon his return to the Philippines, and concluded that he had fabricated his claims so as to create a basis upon which to apply for non-refoulement protection that his claim for non-refoulement protection failed on all applicable grounds.

10.  On 11 December 2020, 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 his supporting affirmation of the same date in which he just repeated his claim as before but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application. 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 of the Board’s decision.

11.  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.

12.  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 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.

13.  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.

14.  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.

15.  For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, 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