CERRO GAVINO JR. RUBIO v. TORTURE CLAIMS APPEAL BOARD

HCAL 2055/2020

[2025] HKCFI 6398

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2055 OF 2020

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

Following:

	consideration of the documents only;            or
	consideration of the documents and the Applicant being absent in open court;

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 43-year-old national of the Philippines who arrived in Hong Kong on 28 October 2019 as a visitor with permission to remain as such up to 11 November 2019 when he did not depart and instead overstayed, and on 27 November 2019 he surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if he returned to the Philippines he would be harmed or killed by his creditor for failing to repay his debts. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Manila, the Philippines. After leaving school he worked in various manual jobs including as a street hawker, a cleaner and a hair dresser in his home district to make his living.

3.  In 2019 he started his own hair salon business with the help of a loan borrowed from a local money-lender with monthly interests payments which he initially managed to make from his business income.

4.  However, in August 2019 he lost his business after his shop was destroyed by a cyclone, and when he defaulted with his loan repayment, his creditor started to send men to threaten him, and after one occasion in September 2019 when he was abducted by those men to some remote area where he was beaten violently, and with a warning that next time they would kill him if he still failed to repay his loan, and so the Applicant became fearful for his life and fled from his home district to Quezon City to hide in an aunt’s place.

5.  As he later heard that his creditor had sent men to look for him everywhere, he felt it was no longer safe to remain in the Philippines, and so on 28 October 2019 he departed for Hong Kong where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 19 March 2020 and attended screening interview before the Immigration Department with legal representation.

6.  By a Notice of Decision dated 19 May 2020, the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

7.  In his decision, the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his creditor and followers upon his return to the Philippines as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of his creditor to seriously harm or kill him other than to press him to repay his debts, that in any event it was a private monetary dispute between him and his creditor only without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in the Philippines with a large population of 109 million people spread across a vast territory of more than 300,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home district in large cities such as Davao City or Cebu City where it would be difficult if not impossible for his creditor to locate him.

8.  On 29 May 2020, the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which the Board did not hold any oral hearing and proceeded to deal with his appeal on paper based on all the materials and information provided by him earlier to the Director and available in the hearing bundle before the Board. On 28 September 2020, his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision[1], the Board accepted the Applicant’s claim of fear of harm from his creditor over his unpaid debts but found no reliable evidence of any real intention of his creditor to seriously harm or kill him other than to press him to repay his debts, and that in any event it was a private monetary dispute between him and his creditor only without any official involvement that state or police protection would be available to the Applicant upon his return to the Philippines as well as reasonable internal relocation alternatives for him to move safely to other parts of the country away from his home district without any risk of being located by his creditor that his claim for non-refoulement protection failed on all applicable grounds.

10.  On 14 October 2020 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)  Procedural impropriety in the Board’s failing to properly apply para 2 of the UN Committee Against Torture General Comment No. 2 whereby satisfaction of a national state obligations to conduct sufficient due diligence requires that reforms and means of relief introduced must be effective in any event but that the Board just focused on whether such reliefs show merely signs of positive improvement;

(2)  Procedural impropriety in failing to conduct sufficient inquiry into relevant COI conditions to consider that the Applicant would face serious risk from his enemies who will harm him because of his political and statistical view which consider a serious matter for which he would definitely harm him upon refoulement;

(3)  Procedural impropriety/irrationality in failing to provide reasons for assessment of lack of BOR 2 risk and/or sufficient basis to support conclusion of lack of BOR 2 and BOR 3 risks;

(4)  Error/misdirection in law in failing to take into account the considerations of psychological strain and threats to the Applicant personally or threats to him directly to kill him;

(5)  Procedural impropriety in the Board’s failure to consider the Applicant’s fear that his enemies still fear for him that he cannot return to his country in the circumstances as there are genuine risk awaiting for him that he cannot relocate to other places because his enemies could easily trace him wherever he would hide in his country;

(6)  That there was no sufficient basis to conclude that the Applicant and his family members would not be at risk of being subjected to torture and/or CIDTP upon refoulement.

11.  These are however all just bare and vague assertions of the Applicant containing a few key words or phrases but without any necessary or relevant particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy were his political and statistical views to his claim which on the factual basis of even his own case was just a private monetary dispute between him and his creditor only without any political element at all. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, and as he also failed to attend the scheduled hearing of his application without any explanation, I do not find any of them reasonably arguable for his intended challenge.

12.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

13.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in his claim if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of the Philippines, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

14.  In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

15.  For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly 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