CRUZ EDWARD DE GUZMAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2406/2019

[2025] HKCFI 430

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2406 of 2019

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;

1.  The Form 86 is amended on the court’s own motion.

2.  The Leave Application be dismissed.

Introduction

1.  By prescribed Form 86 filed on 20 August 2019, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 8 August 2019 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 26 September 2018 (“Director’s Decision”) rejecting the applicant's non-refoulement claim.

2.  In the Form 86, the applicant named the “Torture Claims and Appeal Board” and the Director as the interested parties. As the Board should have been the proper proposed respondent and the Director the proper proposed interested party, the Form 86 will be amended accordingly on the court’s own motion.

3.  As the applicant had requested for a hearing of the Leave Application, this court held a hearing on 19 December 2024. A notice of hearing with a reminder of the consequence of absence dated 29 November 2024 was sent to the applicant’s last known address by ordinary post. On 17 December 2024, my clerk contacted the applicant by telephone, and was able to speak to him. The clerk reminded the applicant of the scheduled hearing, including the time and court number of the hearing. The applicant confirmed that he knew about the hearing and would attend. However, the applicant did not turn up at the hearing. A telephone call was made to the applicant’s given telephone number at the hearing, but to no avail. The information before this court shows that not only the said notice of hearing has not been returned undelivered through the post, the applicant had also confirmed that he was aware of the hearing.

4.  In the circumstances, this court will dispose of the Leave Application according to the materials already placed before the court.

Background

5.  The background as taken from the respective decisions of the Director and the Board referred to above can be briefly stated as follows.

6.  The applicant is a national of the Philippines. He came to Hong Kong on 2 March 2017 as a visitor and was allowed to stay until 16 March 2017. Upon the expiry of his visa, he overstayed. On 4 April 2017, he surrendered himself to the Immigration Department. By a number of written significations, the applicant lodged a non-refoulement claim. The applicant’s case was considered under all applicable grounds - the risk of torture[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4] under the USM.[5]  The claim was based on a fear that if refouled, he would be harmed or killed by local political leaders who were opposed to the applicant’s late father when he was a village councillor.

7.  The applicant claimed that before his father’s murder in around 2014 by members of the opposition party who disliked the father’s association with his party and the village councillors, the applicant already received verbal threats and was later assaulted by men from the opposition party. The father’s effort to eradicate drug trafficking in the village had also upset the drug dealers and many village councillors. After the murder of the applicant’s father, the applicant encountered threats from the members of the opposition party as they feared that the applicant would carry on the work of the father after the latter’s death.

8.  The applicant decided to leave home. Between 2014 and 2016, the applicant obtained employment in Saudi Arabia. The applicant then went to Macau before coming to Hong Kong in 2017 to seek non-refoulement protection.

9.  In the Director’s Decision, the Director decided against the applicant’s claim on all applicable grounds. The Director assessed the claimed risk of ill-treatment to have been low, as the low frequency and low intensity of past-ill-treatment from the people of the opposition party was indicative of the unlikelihood of future risk of harm, and there was no evidence suggesting that the applicant was a target of the government or police. After having considered the country of origin information reports (“COI”), the Director was satisfied that state protection was available and that internal relocation alternatives were available and reasonable. Hence, the applicant’s appeal to the Board against the Director’s Decision.

10.  On 25 June 2019, the applicant attended a hearing before the Board with a Tagalog interpreter. The applicant confirmed that the information supplied by him in the hearing bundle was true and that he had nothing to add. In the Board’s Decision, the Board found that the applicant put forward no credible evidence to support his assertion that he would be at risk from politicians from his home village. The Board found numerous inconsistencies in various key aspects of his evidence, and did not accept that the applicant had adduced reliable evidence. The Board also found that it would not be unreasonable or unduly harsh for the applicant to live elsewhere. The option of internal relocation could effectively eliminate his claimed risk of harm. The Board dismissed the applicant’s appeal and confirmed the Director’s Decision.

Legal principles applicable to judicial review

11.  As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see 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.

Discussion and conclusion

12.  The applicant’s Form 86 did not contain any grounds for seeking relief. In his supporting affirmation of the same date, he exhibited an appeal letter, a copy of the Board’s Decision and the hearing bundle that was placed before the Board. In the exhibited appeal letter, the applicant set out 9 reasons in support of the Leave Application. They can be summarised as follows:

a.  the interpreter could not translate his answers;

b.  the Board came to the wrong conclusion that the level of risk of harm was low under all the applicable grounds in his non-refoulement application;

c.  the Board was wrong in concluding that there were many viable alternatives to relocate; and

d.  the Board was wrong to rely on certain articles and studies when rejecting his evidence regarding his father’s death.

13.  The applicant’s grounds are bare assertions. The Board’s Decision clearly shows that the Board had provided sufficient time and opportunity to the applicant to clarify matters. The contention in relation to the interpretation at the hearing before the Board is clearly invalid. In the Board’s Decision, it was stated that both the applicant and the interpreter confirmed that they could understand each other (see the Board’s Decision, para 1).

14.  The Board’s Decision was arrived at after having examined the applicant’s evidence in great detail. The Board’s findings on the applicant’s lack of credibility and that the option of internal relocation are findings of fact, which the court in a judicial review will not interfere with.

15.  Having rigorously examined the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to all the grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness in the Decisions of the Director and the Board. I find that it was perfectly open to the Board to come to its conclusion that the applicant failed to discharge his burden of proving the asserted fears and risks.

16.  For these reasons, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

Orders

17.  The Form 86 is amended on the court’s own motion.

18.  The Leave Application be dismissed.

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