RE PENOL AGUSTINO PASAMANERO

CACV 581/2018

[2019] HKCA 379

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 581 OF 2018

(ON APPEAL FROM HCAL 500 OF 2018)

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J U D G M E N T

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Hon Lisa Wong J (giving the Judgment of the Court):

The appeal

1.  This is an appeal by the abovenamed applicant, Mr Agustino Pasamanero PENOL, against the order made by Deputy High Court Judge Josiah Lam (“Judge”) on 11 December 2018 refusing him leave to commence judicial review proceedings to quash the decision of the Torture Claims Appeals Board (“Board”) given on 9 March 2018 (“Board’s Decision”), which dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”) of his non-refoulement claim (“NRF Claim”) on 6 July 2017.

Basis and allegations in support of NRF Claim

2.  The basis of the NRF Claim made by the applicant, a Filipino now aged about 39, is a fear of harm by one Angelo De Jesus (“Angelo”), his former business partner and a nephew of the mayor of Koronadal, South Cotabato, Philippines, if the applicant is returned to his hometown in the Philippines (Santo Niño, South Cotabato).  More particularly, such alleged fear is said to arise out of the following circumstances:

(1)   In January 2010, the applicant and Angelo set up a company in Koronadal to carry on a partnership business (“Business”).  They each invested 150,000 Peso into the Business.

(2)   The Business went well.  

(3)   However, the applicant found that he had been given less than the agreed 50% of the profits, which led to an argument between him and Angelo in March 2011.

(4)   Angelo’s refusal to let the applicant see the accounting and financial records of the Business caused a second heated argument in April 2011.  The applicant demanded Angelo to return his capital to him.  Angelo refused and threatened the applicant. That was the last time they spoke to each other.

(5)   About 5 days later, the applicant received a letter in which express death threats were made against him.[1] While there was no indication that the letter was written or sent by Angelo, the applicant believed Angelo was behind it because he had no other enemy.

(6)   On one night in May 2011, gunshots were fired at the applicant’s house when he was inside it.  Thereafter, he saw motorcycles passing by and sometimes stopped in front of his house.  The applicant suspected that Angelo instigated these incidents.  He was scared and could not sleep at night. 

(7)   Fearing further harm, he moved to Davao in June 2011.  However, he still received a threatening text message in his phone in July 2011.  In the last week of July 2011, he noticed that he was followed by a stranger whom he believed to be one of Angelo’s men.  While he was in Davao, the applicant was informed by his mother that Angelo sometimes passed by his house on a motorcycle though he did not enter the house or say or do anything to the applicant’s mother or other family members.

3.  The applicant had not reported any of the above-mentioned incidents to the police in the Philippines because he thought the police would favour Angelo because his uncle was a mayor.  He left Davao for Manila in November 2011. 

Entry into Hong Kong and lodgment of NRF Claim

4.  The Applicant came to Hong Kong on 4 December 2011 as a visitor.  He left for Macau on 15 December 2011 and re-entered Hong Kong on 17 December 2011 on a visa that expired on 2 January 2012. After he came to Hong Kong, the applicant was informed by his mother over the telephone that Angelo still came to his home village to search for him.  The applicant overstayed and surrendered to the Immigration Department on 7 February 2012.

5.  The applicant raised a torture claim (“Torture Claim”) on 7 February 2012 for protection from torture risk under article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment[2] (“torture risk”).  The Torture Claim was rejected by the Director on 12 July 2012, without any appeal. 

6.  The applicant then lodged the current NRF Claim by written representation on 15 September 2013.

Director’s Decision

7.  In processing the NRF Claim, the Director’s representative interviewed the applicant who had legal assistance from the Duty Lawyer Service.

8.  By a Notice of Decision dated 6 July 2017 (“Director’s Decision”), the Director rejected the NRF Claim on the following grounds namely, persecution risk[3], “BOR 2” risk[4] and “BOR 3” risk[5].  The Director did not re-visit torture risk which had previously been disposed of under the Torture Claim without any appeal.  The Director saw no substantial ground to believe that the claimed risk of harm from Angelo and his men was likely to materialise upon the applicant’s return to the Philippines.  Further, the availability of state protection as well as internal relocation alternatives would also negate or lower any such perceived risk. 

Appeal to Board and Board’s Decision

9.  The applicant appealed to the Board.

10.  The Board conducted a rehearing of the NRF Claim on 21 February 2018, at which the applicant testified and answered questions by the Board and was given the opportunity to make submissions.

11.  The Board’s Decision covered persecution risk, “BOR 2” risk and “BOR 3” risk.  The Board was prepared to accept the applicant’s account of events so that, if the applicant should return to his hometown to live, he would face a real risk of harm from Angelo which may include actual bodily injury or intense physical or mental suffering falling within the meaning of cruel, inhuman or degrading treatment or punishment under article 3 of s 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).  Nevertheless, the Board dismissed the applicant’s appeal because of the availability of internal relocation alternatives.  It is particularly noteworthy that the applicant agreed with the Board that Angelo would not be aware of the applicant’s return to the Philippines if he should live in Manila which, the Board noted, is far from the applicant’s hometown, has a very large population and was where the applicant had lived for a period of time before coming to Hong Kong.  The applicant further told the Board that he would not suffer any hardship from living in Manila.

Application for leave for judicial review and Judge’s Decision

12.  By a Notice of Application for Leave to Apply for Judicial Review issued under HCAL 500/2018 on 28 March 2018 (“Form 86”), the applicant sought leave to apply for judicial review of the Board’s Decision.  The Form 86 did not state any grounds on which relief was sought.  The supporting affirmation filed on the same date, however, complained about the Director and the Board:

(1)   cherry-picking from, or failing to sufficiently/independently enquire into, the relevant country of origin information (COI) regarding the availability of state protection;

(2)   failing to consider the claim in a holistic manner;

(3)   failing to consider extended state acquiescence;

(4)   concluding on the prospect of internal relocation without sufficient analysis as to the applicant’s limited resources and the means available to Angelo to locate the applicant;

(5)   failing to give reasons for the assessment of lack of “BOR 3” risk;

(6)   failing to consider the claim entirely afresh which would require the Board to itself obtain and independently assess all relevant COI (instead of just making reference to all the papers and evidence given by the applicant);

(7)   failing to consider the psychological impact of the threats made against the applicant; and

(8)   giving insufficient reasons to support the conclusion that the applicant would not be subjected to harm if refouled to the Philippines.

13.  Following an oral hearing on 5 July 2018 at which the applicant was present and assisted by a Tagalog interpreter, the Judge refused leave.  His reasons can be found in [31]-[42] of the CALL-1 form dated 11 December 2018, [2018] HKCFI 2575 as follows:

“31. In his affirmation, the Applicant complained against the Director as well as the Adjudicator. As said in paragraph 18 above, I shall deal with the Applicant’s application for leave for judicial review against the Board’s decision only since the Director’s 2017 decision had been taken on appeal to the Board.

32. The Applicant complained the Adjudicator failed to deal with his appeal on a rehearing basis and failed to make independent assessment of his case. This was not true. The Adjudicator’s report clearly showed the Adjudicator dealt with the Applicant’s appeal against the Director’s 2017 decision on a re-hearing basis. The Adjudicator engaged in joint endeavour with the Applicant in the screening process. The Applicant was given reasonable and sufficient opportunities to state and elaborate his case. The Adjudicator made his assessment independently of the Director’s view. In fact, the Adjudicator’s decision was different from the Director’s. The Director considered the Applicant faced no risk at all. The Adjudicator, on the other hand, found the Applicant would face CIDTP risk (BOR3 risk) but that risk could be compromised by internal relocation.

33. The Applicant complained the Adjudicator cherry-picked information. The Applicant failed to be specific. There was no proof of such allegation.

34. The Applicant said the Adjudicator failed to consider his claim in a holistic manner. The Adjudicator’s report showed the Adjudicator considered the whole of the Applicant’s case thoroughly.

35. The Adjudicator did consider the psychological impact of the threats claimed by the Applicant.  He accepted the Applicant had formed such fear that made him decide to leave his country.  The Adjudicator considered the Applicant’s claim in detail.  He only accepted the Applicant would fact CIDTP risk (BOR3 risk) if he went back to his home town and confronted Angelo.  The Adjudicator found there was no life risk (BOR2 risk) because Angelo did not really mean to kill the Applicant.  The complained situation was only a private dispute about money and not for any Convention reasons (race, religion, nationality, membership of a particular social group or political opinion) so there was also no persecution risk.  [The Adjudicator need not be concerned with torture risk because it was not a subject matter on appeal from the Director’s 2017 decision.  The Applicant’s torture claim was rejected by the Director in 2012 and there was no appeal.]

36. The Applicant complained the Adjudicator failed to consider the concept of extended state acquiescence. The Adjudicator said in paragraph 34 of his report:

“... However, I consider the reason for that harm is a private dispute between Mr ADJ and the Appellant and not for any Convention reasons.  I further consider there is indication Mr ADJ is a government official or that there is any active or passive acquiesce by the Philippine authorities.  Nor do I consider the risk of harm to the Appellant from Mr ADJ involves anything more than a remote possibility of a threat to the life of the Appellant.”

37. It is for sure the Adjudicator had inadvertently omitted the word ‘no’ in the third line before ‘indication’. Mr ADJ (Angelo) was indisputably not a government official. Despite such inadvertent mistake, the Adjudicator’s meaning was clear in the context: he found there was no state involvement or any active/passive state acquiescence.

38. In any event, state acquiescence was not an issue in the Applicant’s case. He had never reported his predicament to the Philippines police or authorities. There was no evidence the Philippines police or authorities knew of the alleged situation and acquiesced in it.

39. The Applicant complained the Adjudicator failed to conduct sufficient inquiry or substantive analysis of relevant COI and wrongly concluded that internal relocation was viable.

40. The Adjudicator need not refer to COI in this regard because the Applicant himself agreed with the Adjudicator that Angelo would not be aware if he returned to the Philippines to live in Manila. The Applicant further agreed he would not suffer any hardship of living in Manila.

41. The Adjudicator was entitled to find the Applicant would only face CIDTP risk (BOR3 risk) from Angelo if he returned to his home town. That risk was a localized one. The Applicant could relocate himself to Manila to avoid such risk. The Adjudicator’s conclusion was not Wednesbury unreasonable.

42. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’.  The Adjudicator had proper basis for his finding, conclusion and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness.  The Adjudicator had engaged in joint endeavour with the Applicant in the screening process.  The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case.  The Adjudicator was acquainted with the facts of the case.  He considered the Applicant’s claim carefully and applied the law correctly.  The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim. None of the Applicant’s complaints is substantiated.”

Appeal to Court of Appeal and grounds of appeal

14.  By a notice of appeal filed on 17 December 2018, the applicant appealed against the refusal of leave for judicial review on the grounds (“Grounds” collectively) that the Judge failed to:

(1)    consider the psychological strain and threats to the applicant (“Ground 1”);

(2)    consider the concept of extended state acquiescence as expounded by Lam J (as he then was) in TK v Jenkins[6](“Ground 2”);

(3)    give reasons or sufficient reasons for the assessment of lack of “BOR3” risk (“Ground 3”);  

(4)   enquire into or consider the effectiveness of the steps taken by the Philippines against the violence and terror inflicted by loan sharks against vulnerable persons in the country of origin and “whether or not there had been a failure of due diligence on the part of the country of origin national and local authorities so as to make the state and its official responsibility (sic) under the convention against Torture (see para 18 UN general comment No 2 issued by the United Nations Committee Against Torture).” (“Ground 4”).

15.  In his skeleton submission dated 15 February 2019, the applicant basically repeated his complaint that the Director and the Board had failed to make sufficient enquiries into the country of origin conditions or have due regard to the facts that he had received death threats from Angelo who is a nephew of a powerful mayor and was placed in mortal danger and put in severe mental distress from being targeted by assailants in his home country.

16.  The applicant appeared in person at the hearing of the appeal on 25 March 2019.  He had nothing to add to his grounds of appeal or written submission.

Court of First Instance’s role in judicial review in non-refoulement claim

17.  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 role of the court in judicial review is not to re-assess the non-refoulement claim.  The court will scrutinise 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 [2018] HKCA 524 at [14(1)].

Court of Appeal’s approach in appeal against refusal of leave for judicial review in non-refoulement claim

18.  An appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh.  What the appellate court is concerned with is the decision of the judge at first instance which is considered in light of the grounds of appeal raised by the applicant.  The Court of Appeal shall interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong.  See again Nupur Mst v Director of Immigration at [14(2)].

Discussion

19.  Contrary to the applicant’s suggestion in Ground 3, the Board did find “BOR 3” risk if the applicant returns to live in his hometown in the Philippines.  So Ground 3, which is premised upon an assessment of lack of “BOR 3” risk, is incorrect.  Given the finding of “BOR 3” risk, there is no scope for the suggestion of failure to consider or sufficiently consider the psychological strain and threats to the applicant either.

20.  The Board dismissed the applicant’s appeal against the Director’s rejection of the NRF Claim despite the existence of “BOR 3” risk because the applicant can relocate to live safely in Manila.  Neither of the remaining grounds, i.e. Ground 2 (extended state acquiescence) or Ground 4 (effectiveness of state protection), addresses or is even relevant to this finding.  Indeed, as noted in paragraph 11 above, the finding of viable internal relocation alternative was made by the Board with the applicant’s agreement that Angelo would not be aware of his return to the Philippines if he moves to Manila and he would not suffer any hardship from living in Manila.

21.  Anyway, extended state acquiescence arising from inadequate state protection is material only when one is considering torture risk.  However, the applicant had not appealed against the Director’s rejection of the Torture Claim.  Neither the Director’s Decision nor the Board’s Decision therefore covered torture risk.  As noted by the Board in paragraph 49 of the Board’s Decision, it was unnecessary for the Board to assess state acquiescence or if the Philippines has a consistent pattern of gross, flagrant or mass violations of human rights.  

22.  In conclusion, the applicant did not in the notice of appeal or his written submissions identify any error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave for judicial review was plainly wrong.  Nor can we discern any.

Disposition

23.  For these reasons, we see no basis to interfere with the Judge’s decision. Accordingly, we dismiss the appeal.