|
HCAL 1665/2019
[2024] HKCFI 1516
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1665 of 2019
| BETWEEN |
|
|
| |
Sampayan Bernard Ablao |
Applicant |
| |
and |
|
| |
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
| |
and |
|
| |
Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge K.W. Lung:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
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 asked for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, a hearing date on 24 April 2024 was fixed for him to appear before the Court. However, he was absent without prior notice to the Court. I shall deal with this 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 61, is a Filipino. He arrived in Hong Kong as a visitor on 11 October 2017 and overstayed since 26 October 2017. He surrendered to the Immigration Department on 9 November 2017 and he made a non-refoulement claim on 9 November 2017 and 3 January 2018. The claim was made on the basis that, if refouled, he would be harmed or killed by two Filipino male passengers (“the Passengers”) who left plastic bags containing drugs in his tricycle and he was framed by the police of being involved in drug dealings.
5. According to the applicant, he was a tricycle driver and started living in Manila in 2012. On or about 9 September 2017, while he was carrying the Passengers in his tricycle, he noted he was being followed by a police car. When the Passengers saw the police car, they got scared and got off the applicant’s tricycle, leaving behind the plastic bags they brought. The applicant opened the plastic bags out of curiosity and found white powder inside. He showed the plastic bags to his fellow drivers, who told him that it might be drugs. The applicant then decided to take the plastic bags to the police station and gave a statement to the police.
6. On 17 September 2017, the applicant received a phone call from a stranger, who threatened to kill him if he failed to return the plastic bags. The stranger also told the applicant that he got his number from a police officer, who was his friend. On 20 September 2017, while the applicant was resting in his tricycle, four masked men on two motorcycles, two of whom were the Passengers, came to where he had parked. Two men punched him and a man pointed a gun at his mouth while the remaining man was on the lookout. The applicant managed to escape with the help of his friends. The applicant had bruises over his body. He self-treated his wound, but did not go to the hospital.
7. On 21 September 2017, the applicant reported the assault to the police. However, the police told him that he had no strong evidence given that his friends refused to be his witnesses. The police even accused the applicant for being involved in drug dealing, though he was not arrested or charged. On 3 October 2017, the Passengers came to his house in Manila around midnight. They kicked his door hard and asked him to come out. The applicant remained inside his house and the Passengers left after around three minutes.
8. On 4 October 2017, the applicant decided to leave Manila and went back to his hometown. While he was in his hometown, the Passengers still called and threatened to kill him if he failed to return the plastic bags to them. The applicant changed his phone number, after which the Passengers did not contact him anymore. The applicant arrived in Hong Kong as a visitor on 11 October 2017. On or about 23 October 2017, his brother called and told him that two police officers were looking for him, accusing him of illegal drug use and drug trafficking. The applicant therefore decided to overstay in Hong Kong. Although he kept contact with his brother and his wife whilst in Hong Kong, he had no updated information on the Passengers as well as the stance of the Filipino police.
9. The applicant was of the view that he would not be able to seek state protection because the justice system in the Philippines was unfair unless he had connections to high profile people. He claimed that some authorities were even involved in illegal activities. The applicant also considered internal relocation not viable because the Passengers were able to locate him even though he moved back from Manila back to his hometown.
10. Details of the applicant’s story can be found in paragraph 7 of the Director’s Decision dated 30 August 2018 (“the Director’s Decision”).
The Director’s Decision
11. The Director considered the applicant’s claim in relation to the following risks:
a. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);
b. 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”);
c. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and
d. 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”).
12. By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that (i) the low intensity and frequency of past ill-treatment from the Passengers indicated a small future risk of harm upon his return to the Philippines [13]-[17]; (ii) there was no indication that he would be harmed by the police or that he would not receive a fair trial [18]-[19]; (iii) state protection would be available to him upon his return [20]-[25]; (iv) internal relocation would be viable [26]-[30] and (v) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [31]-[36], Persecution risk [37]-[41] or Torture risk [42]-[46].
The Board’s Decision
13. The applicant appealed the Director’s Decision to the Board. On 7 March 2019, the Board conducted an oral hearing.
14. Having considered the applicant’s evidence, the Board was not satisfied that his claims were truthful [69]. There were significant inconsistencies in his evidence as to whether he had thought about or suspected that the contents inside the plastic bags were illegal drugs [70]-[72]. In addition, the Board found it not credible that the stranger who made the threatening phone call to the applicant on 17 September 2017 would not have known that the drugs were in the possession of the police as he claimed that he was a friend with one of the police officer [77]. As to the assault, the Board were not convinced that the applicant would be able to recognise the Passengers out of the four masked men [78]. It also found the applicant’s failure to explain how the police knew that his friends refused to be witnesses problematic [80].
15. In any event, there was no documentary evidence regarding (i) the applicant’s report to the police about the discovery of suspected drugs in his tricycle and the assault by the four masked men [76], [81]; (ii) his claimed injuries in relation to the assault [79] and (iii) the accusation by the police that he was involved in drug related offences [82].
16. Based on such findings, the Board was of the view that the applicant had fabricated his claims to remain in Hong Kong. They did not accept that the applicant (i) found two bags of white powder/drugs in his tricycle; (ii) took the two bags to the police; (iii) received threatening phone calls; (iv) attacked by masked men; (v) reported the assault to the police and was told that there was no strong evidence and (vi) approached by the Passengers at his home in Manila who kicked his door [83].
17. The Board found that the applicant was never physically injured or threatened with death by the Passengers. They were also satisfied that the police did not make allegations against the applicant for any drug related offences [84]. As such, the applicant should not be at risk of any harm if he returned to the Philippines [91]-[92]. Furthermore, internal relocation would be viable taking into account the country of origin information [88]-[90].
18. The Board concluded that the applicant’s case failed to meet any of the requirements under Torture risk [93]-[99], BOR 2 and BOR 3 risk [100]-[109] or Persecution risk [110]-[114]. The applicant’s appeal was therefore dismissed and the Director’s decision was confirmed.
Application for leave to apply for judicial review of the Board’s Decision
19. The applicant has filed Form 86 dated 18 June 2019 for leave to apply for judicial review of the Board’s Decision.
20. In his affidavit in support of his application, the applicant raised the grounds below:
(1) Procedural impropriety: failure to properly apply para. 2 of the UN committee against Torture General Comment No. 2; failure to conduct sufficient inquiry into the relevant country of original conditions; failure to give sufficient reasons for assessment of BOR 3 risk; failure to consider his fear that the loan shark will harm him and his life will be in danger; and no sufficient basis to conclude that he will not be as risk of BOR 3 risk and Torture risk upon refoulement.
(2) Error/Misdirection in law: failing to take into account psychological strain and threats to him personally or threats to him of being killed.
DISCUSSION
21. 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).
22. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.
23. 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.”
24. For those reasons given in paragraphs 14 and 15, supra, the Board rejected his evidence in support of his claim. Those grounds under paragraph 20 do not assist the applicant as they are his bare and general assertions without any evidence in support[1].
25. The applicant has raised no valid reason to challenge the Board’s Decision.
26. There is no reason that the Court should interfere with the Board’s finding of the facts.
27. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.
CONCLUSION
28. I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.
Dated the 18th day of June 2024
| |
(M.O. WONG)(Ms)
for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
|
|
|
|
|
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
|
|
Sent to the Applicant
on 18/6/2024
Sampayan Bernard Ablao
Applicant’s ref. no:
Nil
|
|
Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 18/6/2024
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 13378/18/9/139/F863
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 3358/18 (formerly RBCZ 10117/18)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
|
Form CALL-1
[1] The Court of Appeal in Salim Ahmed alias MD Salim [2020] HKCA 244 held:
“20. … … general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case: Re Mizan Sikder [2019] HKCA 20 and Ibrahim v Simon Russell [2019] HKCA 1327.” See also Re Haider Khalil [2021] HKCA 223 [16].”
|