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HCAL 1438/2022
[2023] HKCFI 1001
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1438 of 2022
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BETWEEN
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D’Souza Mark Phillip Garcia |
Applicant |
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and |
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Torture Claims Appeal Board / |
Putative |
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Non-Refoulement Claims Petition Office |
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge To:
Leave to apply for Judicial Review refused.
Observations for the Applicant:
Introduction
1. This is the Applicant’s application by Form 86 filed on 8 December 2022 for leave to apply for judicial review (the “leave application”) of decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (the “Board”) dated 21 November 2022 dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 27 September 2022 (the “Notice”).
2. The Applicant is a Filipino national, now aged 25. He arrived in Hong Kong on 7 May 2014 on a dependant visa to join his father, who is a Hong Kong permanent resident. His visa was last extended to 25 January 2021. On 8 August 2020, he was arrested for burglary, handling stolen goods and obtaining property be deception, for which he was subsequently convicted and sentenced to a total term of 32 months’ imprisonment. He was released from prison on 2 June 2022 and a deportation order was made against him on 26 June 2022. Then he lodged his non-refoulement claim by way of written significations dated 3 and 8 August 2022.
3. In due course, his non-refoulement claim was assessed on all four applicable grounds under the United Screening Mechanism (“USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. His claim was dismissed by the Director’s Notice. His appeal against the Notice was dismissed by the Decision of the Board. He now seeks leave to apply for judicial review of that Decision.
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 screening interview he attended in the presence of his lawyer. In gist, he claimed that, if returned to the Philippines, he will be harmed or killed by his girlfriend’s family for having made her pregnant.
5. The Applicant was born in Bambang, Nueva Vizcaya, the Philippines. He has received 11 years of education and attended one year in university. Since 2014, he stayed in Hong Kong on a dependant visa and occasionally travelled back to the Philippines.
6. In around mid-2017, the Applicant met his girlfriend while on holidays in the Philippines. After he returned to Hong Kong, they began a long-distance romantic relationship. In around late 2017, the Applicant was informed by a friend that his girlfriend in fact came from a prestigious political family. Her paternal uncle was the mayor of the Applicant’s home town and her entire family was wealthy. The Applicant was unaware of his girlfriend’s family background before.
7. The Applicant went to the Philippines again on holiday in around mid-May 2018. He stayed with his girlfriend for a short vacation in Cebu. He returned to Hong Kong towards the end of May 2018. In around August 2018, his girlfriend informed him over the phone that she was pregnant and she had confessed to her parents about their relationship. Her family became furious upon hearing the news of her pregnancy. His girlfriend told him not to return to the Philippines as her family had threatened to kill him for ruining their reputation and impregnating their daughter. She warned him again in around early September 2018 not to return to the Philippines and that her family had renewed their threat to kill him. The Applicant has since lost contact with his girlfriend.
8. In around late 2018, the Applicant was told by his paternal cousin in the Philippines that the police were searching for him in relation to a number of drug trafficking cases. He believed that his girlfriend’s family had filed those false complaints against him for revenge.
The finding of the Board
9. The Applicant testified before the Board. His father also attended the hearing and answered the Board’s questions. Despite many inconsistencies in his evidence, the Board gave him the benefit of doubt and accepted the centerpiece of his case that he had a romantic relationship and his girlfriend, her family may have political connection and her family threatened to kill him.
10. His evidence before the Board that he instigated cessation of contact with his girlfriend is inconsistent with his assertion in the NCF that he tried to contact her many times but without success. His evidence that he cut off all contacts with people in the Philippines, including his trusted cousin is incredible. The Board also found that his girlfriend’s uncle is no longer a mayor and that his power is likely to have diminished. The Board considered the Applicant not credible and had embellished his evidence to boost his claim of fear and risk of harm.
11. The Board did not accept the Applicant’s claim that his girlfriend’s family had filed false drug charges against him. His claim about the false charges is based on vague and hearsay evidence from his cousin who had not even read the warrant against him. The Board considered it highly improbably that his girlfriend’s family would risk taking such a course of action which would have the effect of further tarnishing their reputation by revealing that a member of this prestigious political family had an unborn child by a drug trafficker.
12. Given the relative young age of the Applicant, his health and background, the Board found it not unreasonable for him to relocate to other places in the Philippines, such as Cebu to avoid the threat. Furthermore, the Board was not convinced that there is any real risk that his girlfriend’s family would even be aware of his return to the Philippines, let alone to locate him.
13. In view of the above and the passage of time, the Board found that the risk of harm from the Applicant’s girlfriend’s family is only a remote or speculative one.
14. Applying the law applicable to non-refoulement protection under the USM, the Board found that the Applicant had failed to discharge the burden of proving his entitlement to protection under any of the four applicable grounds under the USM. Hence, the Board dismissed his appeal.
The legal principles applicable to judicial review
15. 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
16. The Applicant did not advance any grounds for judicial review in the Form 86. In his supporting affirmation, the only complaint he raised was that the Board disregarded his dangerous situation. 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.
Discussion and conclusion
17. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is 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. Though the Board accepted the centerpiece of the Applicants’ claim, it found that the risk of harm from his girlfriend’s family is only a remote or speculative one. On the basis of credible and authoritative country of origin information, the Board was also satisfied that it was not unreasonable for the Applicant to relocate to other parts of the Philippines to avoid the risk, if the risk turns 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 does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success. Accordingly, the Applicant’s application for leave to apply for judicial review is refused.
Dated the 17th day of April 2023
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( Allen LEE )
for Registrar, High Court
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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
Notes for the Applicant:
If leave has been granted, the Applicant or his solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant on 17 April 2023
D’Souza Mark Phillip Garcia
Applicant’s ref. no.:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 17 April 2023
Torture Claims Appeal Board
Putative Respondent’s ref. no.:
USM 21033
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 867/22 (formerly RBCZ 5000732/22)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)
[3] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol
[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383
[5] [2018] HKCA 524 at [14(1)]
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