CASTRO JAY PEE REYES v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2758/2018

[2021] HKCFI 2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2758 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;

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 9 October 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”), I shall deal with his application 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 came to Hong Kong on 29 April 2017 as a visitor.  He overstayed and surrendered to the Immigration Department on 22 May 2017.  He lodged non-refoulement claim with the Immigration Department on the same day.

5.  He claimed that if refouled, he would be harmed or killed by the family members of Jerick Esguerra (“Jerick”) with whom he had a fight and paralyzed him.  The incident happened one night in March 2017 at a local karaoke bar in Bulacan.  Jerick’s family have been looking for him.  They threatened to cause harm to him.  His brother was shot dead on 15 August 2017 and he believed it was done by Jerick’s family.  Details of his story are set out in paragraph 8 of the Director’s Decision 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 8 March 2018 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.  The Director found that the risk of being harmed or killed by Jerick’s family if he returned to the Philippines was assessed to be low [12]; that state protection was available to him [14] and internal relocation was an option open to him [19].

The Board’s Decision

8.  The applicant appealed against the Director’s Decision.  He attended the hearing before the Board on 19 June 2018.

9.  By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision.  The Board accepted the applicant’s evidence on the facts in support of his claim.  However, it affirmed the Director’s Decision for the reasons that the incident was a private dispute and the state was not involved [39]; that state protection would be available to him, thereby reducing the risk [40] and Torture risk was not established [43-46]; that whilst accepting that he might be subjected to BOR 3 risk if he returned to the Philippines, internal relocation in Metro Manila or Cebu would neutralize this risk [55-56]; that he failed to establish that his case fell within the protection of Persecution risk [65]; and that there was no ground to believe he would face a risk of being arbitrarily deprived of his life and BOR 2 risk did not apply [67].

Application for leave to apply for judicial review

10.  The applicant filed Form 86 dated 4 December 2018 for leave to apply for judicial review of the Board’s Decision.

11.  In his affidavit in support of his application, he said that the Board’s Decision was not acceptable.  Here, it is noted that the name he put in the affidavit is not the same name in Form 86, though, on the face of it, the signature looks the same.  Since this irregularity plays no significant part in this application, I shall not make further enquiry into it.

DISCUSSION

12.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

13.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13.… …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.”

14.  His ground in support of this application does not assist his application.

15.  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.

16.  There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.

CONCLUSION

17.  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