DIMACULANGAN JOHN ABOBO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2235/2019

[2025] HKCFI 147

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2235 OF 2019

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J U D G M E N T

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Notice of Decision of the Director dated 18 May 2018 (“the Director’s Decision”), which was superseded by the Decision dated 24 July 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.  The applicant did not ask for a hearing. I shall deal with his application on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board, the Director of Immigration is the interested party, and the decision relief is sought is the Board’s Decision.

The applicant

4.  The applicant, aged 47, is a national of the Philippines. He came to Hong Kong on 2 June 2017 as a visitor and was allowed to stay until 16 June 2017. He overstayed and surrendered to the Immigration Department on 27 June 2017, He lodged his non-refoulement claim by written submissions dated 28 August 2017 and 13 September 2017.

5.  According to the applicant, he was a barangay councilor, working under the leadership of Village Chief, Mr. Ariel Magtibay. In 2016, President Rodrigo Duterte issued administrative orders relating to Operation Tokhang, aiming at eradicating the use and selling of illegal drugs. Mr Ariel Magtibay instructed him to compile a list of drug users and suspected drug peddlers in his village. He followed the instructions. Around the first week of May 2017, he received a phone call telling him that he would kill him because of the list he submitted. He had no means to locate or identify this person. Fearing for his safety, he took his friend’s advice and came to Hong Kong.

6.  Details of the applicant’s story can be found in paragraph 7 of the Director’s Decision dated 18 May 2018 (“the Director’s Decision”).

The Director’s Decision

7.  The Director considered the applicant’s claim in relation to the following risks (“the applicable risks”):

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

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

8.  By way of the Director’s Decision, the Director rejected his claim on the applicable risks for the reasons that (i) the probability of being harmed or killed upon his return to the Philippines was low [18]; (ii) state protection would be available [20]-[21]; and internal relocation would be viable [22]-[23].

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board. On 15 May 2019, the Board conducted an oral hearing. The applicant was represented by a duty lawyer and the Director was represented by a government counsel.

10.  Having considered the evidence, the Board dismissed his appeal for the reasons that the applicant’s evidence was inconsistent and unreliable and his story of compiling a list of drug abusers and drug peddlers and the phone threat were rejected, which the Board found to be fabrication for his claim.

11.  For the reasons above, the Board dismissed the applicant’s appeal and confirmed the Director’s Decision.

Application for leave to apply for judicial review of the Board’s Decision

12.  The applicant has filed Form 86 dated 6 August 2019 for leave to apply for judicial review of the Board’s Decision.

13.  In his affirmation in support of his application, the applicant did not raise any specific ground to challenge the Board’s Decision.

DISCUSSION

14.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s 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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

16.  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.”

17.  Both parties were legally represented before the Board. The Board was legally assisted to make a fair decision on the appeal. The Board’s Decision contains a record of the proceedings, which is comprehensive, with anxious examination and rigorous examination of the facts of the claim.

18.  The applicant has not raised any valid reasons to challenge the Board’s Decision.

19.  The applicant therefore fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

20.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.