PEREZ JOSE BOOL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2874/2018

[2022] HKCFI 2722

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2874 of 2018

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 oral submissions by the Applicant in open court;

Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 for leave to apply for judicial review of the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (the “Board”) dated 7 December 2018 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 21 March 2018 (the “Notice”).

2.  The Applicant is a Philippine national, now aged 56. He entered Hong Kong as a visitor on 1 December 2016 and was permitted to remain until 15 December 2016. He overstayed and surrendered to the authorities on 6 January 2017. On 23 March 2017, he raised a non-refoulement claim.

3.  In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. By his Notice dated 21 March 2018, the Director rejected his claims under all four applicable grounds. He appealed. His appeal was dismissed by the Board’s Decision dated 7 December 2018. He now seeks leave to apply for judicial review of that Decision. He did not request an oral hearing. Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered it appropriate that the application be determined on paper without an oral hearing.

The Applicant’s case

4.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer. In gist, he claimed that he would be harmed or killed by a drug lord known as King upon his return to the Philippines because he had rented out a house to King’s associates.

5.  The Applicant was born in Batangas, the Philippines. He is married with 3 children. He received 10 years of formal education and has 7 years of working experience. He and his wife rented out their house to a couple. In October 2016, the Applicant learnt that the couple sold drugs in the house and allowed other people to consume drugs there. He told the couple to leave within a month and threatened to lock up the house if they refused. The couple did not want to leave.

6.  In the same month, the police raided the house and arrested the couple. The Applicant did not know who reported the couple to the police. The couple were released in November 2016. One day in November 2016, King who employed the couple went to the Applicant’s home and threw a rock at its window. His son was injured by broken glass as a result. King threatened to kill the Applicant and his wife if they refused to allow the couple to stay in the house. According to the Applicant, King was highly influential and he could choose to walk out from prison even when he was sentenced to a jail term.

7.  On another day in November 2016, the Applicant’s wife received a phone call telling her that she and the Applicant would be killed if they tried to force the couple to leave.

8.  The Applicant reported the incident to the village head. The village head informed him that the police was involved in the drug syndicate run by King. The village head advised him to leave because King’s people would kill him and his wife. The Applicant and his wife therefore came to Hong Kong to seek protection. Their children stayed in the Philippines with their family members because they were not in danger from King.

9.  The Applicant learnt that the couple continued to run a drug business in the house after he had come to Hong Kong. He believed the police would not protect him as they were not trustworthy and some of them were involved with the drug syndicate. He also did not believe internal relocation would be viable, as King was an influential and powerful man and could locate him anywhere in the Philippines.

The finding of the Board

10.  The Board assessed the Applicant’s claim on the basis that the events asserted by him were true. It noted that neither the Applicant nor his wife had suffered any physical harm from King in the past; that their children and family members had never been harassed by King; and that there was nothing to suggest that King had been pursuing him or his wife. The Board therefore considered the risk of harm to them was remote.

11.  The Board did not accept the Applicant’s claim that the police was involved in the drug syndicate run by King because the police had raided the house and arrested the couple. This suggested that the police were not allied with King. Further, the Applicant’s belief of King’s connection with the police was founded on hearsay from the village head and his neighbours. In the light of the surrounding circumstances, the weight to be attached to such hearsay evidence was greatly reduced.

12.  On the basis of credible country of origin information, the Board was satisfied that the Philippine government has been taking action against drug sellers, users and corrupt officials and that state protection of an adequate standard is available to prevent or negate the risk and harm from King. It was the Applicant who chose not to report the activities of the couple to the police due of his personal belief about the police involvement. That does not mean he would be denied state protection upon his return to the Philippines.

13.  The Board noted that the Applicant’s family members were able to live peacefully in the Philippines without any harassment from King which suggested that King may not have the ability to locate him upon his return. The Board also considered internal relocation a viable option to avoid the risk. With his background and work experience, it would not be unreasonable to expect the Applicant to relocate to Manila, Cebu, Davao or other urban areas in the Philippines For all these reasons, the Board found that the Applicant had failed to make out a case for protection under any of the applicable risks in the USM and dismissed his appeal.

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 did not advance any grounds for judicial review in the Form 86. In his supporting affidavit, the only complaint he raised was that the Board disregarded his dangerous situation. He had been invited by the Court via its letter dated 9 March 2021 to advise the Court of his first language and to file submissions. He responded but did not file any submissions.

16.  In the absence of specific grounds of application, the Court in an application for judicial review could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. The essence of the Applicant’s complaint is that he disagreed with the finding of the Board that it is safe for him to return to his home country. In effect, he is seeking to challenge the Board’s finding of fact that he would not face any real harm or risk if returned to the Philippines. That is not permissible unless the finding involved errors of law, procedural unfairness or irrationality.

Conclusion

17.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds 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 assessed the Applicants’ claim on the basis of the case as he asserted but found the risk of harm he would face on his return to the Philippines was remote. On the basis of credible country of origin information, the Board was also satisfied that state protection and internal relocation are available to prevent or avoid the risk if it turned out to be real. It was on that basis that the Board found that he had failed to prove his entitlement to non-refoulement protection under any of the four applicable grounds. These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. The Decision was utterly without fault. The proposed judicial review has no realistic prospect of success.

18.  For the above reasons, leave to apply for judicial review was 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