CALUMBA STEPHEN REGIDOR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2673/2019

[2025] HKCFI 2916

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2673 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

1.  Leave to amend the Form 86 be granted; and

2.  Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 13 September 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (the “Board”) dated 23 August 2019 affirming the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 20 September 2018.  However, the Court’s inquiry showed that the Board had only made one decision in respect of the Applicant dated 2 August 2019 (the “Decision”) dismissing his appeal against the decision of the Director in his Notice of Decision dated 20 December 2018 (the “Notice”), refusing his non-refoulement application.  At the hearing after the attention of the Applicant was drawn to the above, he agreed that the date of the Decision in respect of which relief is sought should be amended to 2 August 2019.  Leave is hence given to amend his Form 86 to that effect.

Background

2.  The Applicant is a Filipino national.  He last arrived in Hong Kong on 26 May 2018 and was permitted to stay as a visitor until 9 June 2018. He overstayed since 10 June 2018.  He surrendered to the Immigration Department on 20 June 2018 and made a non-refoulement claim on 28 August 2018. In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk^[1]; BOR 3 Risk^[2]; Persecution Risk^[3]; and BOR 2 Risk^[4].  His claim was rejected by the Director’s Notice.  His appeal against the Notice was dismissed by the Board’s Decision.  He now applies for leave to apply for judicial review of that Decision.

The Applicant’s case

3.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer.  In gist, he claims, if returned to the Philippines, he will be harmed or killed by a member of the New People’s Army (“NPA”) named Jovan and his followers (collectively, the “enemies”), because he refused to join the NPA.

4.  The Applicant, now aged 47, was born in Barangay Aquino, Kanlaon City, Negros Oriental, the Philippines.  He is separated, and he has two sons.  He does not know his wife’s whereabouts.  His sons, parents and five siblings are living in the Philippines.  He had received 13 years’ formal education and had 3 years’ study in marine engineering at university.  He had 16 years’ experience working as a warehouse worker and a security guard.

5.  He claimed that in May 2017, the enemies attended his home in San Carlos City to ask him to join the NPA because of his special driving skill.  He refused.  Jovan asked him to reconsider. 

6.  In July 2017, the enemies went to his home again to force him to join.  Again, he refused.  Jovan then threatened that something would happen to him if he refused to join NPA when they came next time.   

7.  At the end of July 2017, the Applicant ran into the enemies on his way home.  They stopped him and forced him to join the NPA. He refused.  Jovan took out his gun to hit the Applicant’s mouth, and then the other enemies assaulted him with bare hands.  During the assault, Jovan told him that he had to join the NPA because the NPA need him, and threatened to kill him if he did not join.  He also heard Jovan’s followers saying that Jovan wanted to kill him this time.  He defended himself rigorously and managed to escape.  The enemies did not chase him, as there were many people on the street.  He self-treated the injuries because he worried that the NPA could find him if he went to hospital.  He did not report the case to the police, as he feared that the NPA would take revenge on his family.    

8.  To avoid the enemies, he went to stay with his cousin in San Carlos City for a night.  He then went to stay at his sister’s place in Cebu the next day.  He came to Hong Kong to visit his girlfriend between 20 and 28 December 2017.  After that, he returned to Cebu.  He did not encounter the enemies while he was in Cebu. 

9.  In January 2018, he went back to his home in San Carlos City to visit his children and parents.  His mother told him that Jovan had visited his home to look for him and asked her for his whereabouts.  He stayed in his home for two days.  When he saw Jovan strolling near his home, he immediately left and returned to Cebu.  For his safety, he left the Philippines for Hong Kong on 26 May 2018.   

10.  He claims that state protection is not available because the NPA is a very powerful and influential group.  He does not believe internal relocation viable, as the NPA can locate him throughout the country through their powerful network.   

The finding of the Board

11.  The Applicant testified before the Board.  The Board did not find him particularly believable or unbelievable.  It seemingly assessed his claim on the basis of the account as he asserted, except on the issue of availability of state protection.  The Board observed that the injury suffered by the Applicant during the only assault incident was rather minor and did not attain the minimum level of severity as to qualify for protection under any of the proscribed risks under the USM.  The Board found the enemies had no intention to kill him.  It found the enemies were not public officials or state actors when uttering the threats to the Applicant.  It considered the dispute between him and the enemies was only a private dispute relating to his refusal to join the NPA and his fear of being persecuted was not on account of race, religion, nationality, membership of a particular social group or political opinion.  It found no evidence that a sentence of death will be imposed on the Applicant, if he is refouled to the Philippines.

12.  The Board rejected his evidence that the police would not offer any assistance to him, as it was he who chose not to report the incidents to the police.  On the basis of objective country of origin information (“COI”), the Board accepted that although there are police failures and corruption in the Philippines, there are objective indications that the Philippine government has taken practical steps to maintain public order and safety in its jurisdiction and to enhance the effectiveness of the police.  Particularly, the police and the military in the Philippines took actions against the NPA, and will continue their security operations to ensure the safety and well-being of the people.  It therefore found that reasonable state protection would be available to the Applicant in the Philippines. 

13.  In the circumstances, the Board found that there could not possibly be any substantial grounds for finding that he would face a real risk of ill-treatment if refouled to the Philippines.  Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found that the Applicant had failed to establish the factual basis to support his claims for protection under any of the applicable grounds under the USM.  Hence, it dismissed his appeal against the decision in the Notice.

Legal principles applicable to judicial review

14.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[5].

Grounds for judicial review

15.  The Applicant annexed a document to Form 86 advancing the following five grounds of appeal:

(1)  the Director’s and the Board’s decisions are wrong, unfair and unreasonable;

(2)  the Director failed to give proper weightage to the presence of state acquiescence;

(3)  the Director failed to take such argument into account or to give enough weight to such argument and COI supporting the Applicant’s case;

(4)  the Director’s attitude was unfair; and

(5)  the Director failed to attain the high standard of fairness required by the Wednesbury test.

All of these grounds are directed at the Director and not at the Board.   As the Director’s decision in the Notice was superseded by the Board’s Decision[6] and is not the subject matter of this leave application, for the Applicants’ benefit, the Court assumed for his benefit that all grounds are directed at the Board as well.

16.  The Applicant claimed that these grounds were prepared by him, but he was unable to provide particulars when asked for.  He even said he did not understand what was meant by “state acquiescence”.  After the term was explained to him, he said there was no state acquiescence.   As shown in the COI, the attacks and violence of the NPA could not have been anything acquiesced by the Republic of the Philippines. 

17.  The Court is familiar with these grounds which appear to be template grounds used in some other applications and have no bearing to the facts of this leave application, such as the ground based on state acquiescence. Apart from vagueness and lack of particulars, these grounds are all directed at the Board’s finding of fact which is solely within the realm of the Board, which the court in a judicial review will not intervene, save for errors of law, procedural unfairness and irrationality in the Decision.  After the principles in the preceding section had been explained to him and in answer to the Court’s question on these matters, the Applicant confirmed that he had no complaint about error of law, procedural unfairness and irrationality in the Decision.  In the absence of proper grounds or grounds with adequate particulars, the court in an application for judicial review could only focus its attention on these elements in its anxious scrutiny of the decision.

Overall scrutiny

18.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board analysed the evidence properly, tested it against common sense and inherent probability.  The Board assessed the Applicant’s claim on the basis of his case as he asserted.  It gave full reasons for its finding.  It was on that basis that the Board found the Applicant had failed to establish the factual basis to support his claim for non-refoulement protection under any of the applicable grounds under the USM.  These are mixed findings of fact and of the law.  Insofar as they are finding of the law, they are absolutely correct.  Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational. The Court could detect no error of law or procedural unfairness in the Decision.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge his burden of proving his fears and risks.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success. 

Conclusion

19.  For the above reasons, leave is granted to amend the Form 86, but the leave application as amended is refused.

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

[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap. 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap. 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[3] Risk of persecution by reference to the non-refoulement principle under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383

[5] [2018] HKCA 524 at [14(1)]

[6] Moshin Ali [2018] HKCA 549