VINTOLA ZOILO ALAIN REY GOCELA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2166/2018

[2021] HKCFI 3608

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2166 of 2018

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 Applicant being absent in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review of the Decision dated 27 September 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”).

2.  The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the matter is dealt with on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (the “Director”) is the interested party.

The applicant

4.  The applicant is a citizen of the Philippines.  He entered Hong Kong as a visitor on 17 November 2017 but overstayed. On 19 December 2017, he surrendered to the Immigration Department.  On 2, 4 and 17 April 2018 respectively, he lodged a non-refoulement claim.       

5.  The applicant claimed that if refouled, he would be harmed or killed by Mayor Christina Garcia Frasco (“Christina”) and her people due to his refusal to be an assassin.  According to the applicant, he become Christina’s body guard in around February 2016 because of his membership with AKHRO. Christina and her husband were influential politicians and were involved in illegal activities.  In June 2016, he witnessed a killing of suspects who were related to drugs.  The applicant knew that he was trained to become an assassin for Christina but he always dodged her requests.  Out of fear, he fled to Hong Kong for protection.  Details of his story could be found at paragraph 6 of the Director’s Decision as described below.  

The Director’s Decision

6.  The Director considered his application in relation to the following risks:

a.   risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.   Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“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”).

7.  By Notice of Decision dated 12 June 2018 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated. The Director found that there was no substantial ground for believing that there would be any real and substantial risk of him being harmed or killed upon his return to the Philippines [11]-[14]; that reasonable state protection was available to him [15]-[16] and that internal relocation was an option open to him [17]-[19]. Details of his story are set out in paragraph 6 of the Director’s Decision described above.

The Board’s Decision

8.  The applicant appealed against the Director’s Decision to the Board.  He attended the scheduled oral hearing on 6 September 2018, during which he answered the inquiries from the Board.

9.   The Board weighed his oral testimony against the evidence in his non-refoulement claim form.  It accepted the possibility of the applicant being a member of the AKHRO [12].  However, it did not accept that the applicant was a body guard for Christina as he barely knew her and there was no proof of employment [20].  Further, most of the applicant’s assertions in his claim were based on his own speculations that Christina and her family would kill him as there was no evidence showing that she and her family had done any harm to him. The Board found that he was unable to prove the primary facts of his case due to his bare assertions without supporting evidence, inconsistences in his evidence and his speculations only [30].  Taking the applicant’s claim to the highest, the Board still refused to accept the applicant’s claim since there was no evidence of harm done to the applicant in the past [31].  In any event, state protection was available to the applicant and, if he was involved in the illegal activities, he could surrender to the authorities which could, according to the country of origin information, provide protection and ensure fair trial for the applicant [32]-[38].  For these reasons, the Board reject his claim on all applicable grounds [39]-[63].  Moreover, it also concluded that internal relocation to Manila and Zamboanga were available to the applicant [64]-[66].  Thus, the Board dismissed his appeal.   

Application for leave to apply for judicial review

10.  The applicant filed Form 86 on 8 October 2018 for leave to apply for judicial review of the Board’s Decision.

11.  In his affirmation in support of his application, he said that he was not satisfied with the Board’s Decision because it is unfair and unreasonable.

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 its 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, CA. §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.  He has submitted no valid ground to assist his application. The grounds are only his opinions without evidence in support of them.

16.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

17.  There is no evidence to show that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

18.  I therefore refuse to grant leave for the applicant to apply for his intended judicial review.  Accordingly, I 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