ESTIMA JORDAN GADGADAN v. TORTURE CLAIMS APPEAL BOARD

HCAL 2163/2019

[2024] HKCFI 3384

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2163 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 oral submissions by the Applicant in open court / the Applicant being absent in open court;

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 39-year-old national of the Philippines who last arrived in Hong Kong on 27 November 2015 as a visitor with permission to remain as such up to 11 December 2015 when he did not depart and instead overstayed, and more than 8 months later on 22 August 2016 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 the Major of Province Ilocos in revenge for being involved in a drunken fight with the Mayor’s son.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Baguio City, the Philippines. After leaving school he worked as a salesman, got married and raised a family with 2 children in his home district.

3.  One day in August 2015 he attended a drinking party held by a friend in his home district, during which he got drunk and had a heated argument with some men and ended up in a fist fight with one of them before they were eventually separated without any serious harm to either of them, and thereafter he just returned home and forgot about the episode.

4.  However, soon he started to receive threatening messages from unknown persons to warn him to leave the country or else he would be killed. The Applicant could not understand why anyone would make such threats against him, but later when he learnt that the man who was involved in the fight with him in that drinking party was in fact the son of the Mayor of Ilocos, he became suspicious that the Major might be behind the threats to take revenge against him for fighting with his son, and upon discussing the matter with his family, he decided to save his life by leaving the country, which he did on 27 November 2015 when he departed the Philippines for Hong Kong where he subsequently overstayed, and more than 8 months later in August 2016 he surrendered to the Immigration Department and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 3 July 2018 and attended screening interview before the Immigration Department with legal representation.             

5.  By a Notice of Decision dated 26 July 2018 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”).

6.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real risk of him being harmed or killed by the Mayor of Ilocos or his son upon his return to the Philippines in the absence of any evidence that his alleged threats in fact came from the Mayor or his men other than the Applicant’s own suspicion and speculation, that even if such risk were real that in the absence of any actual harm or ill-treatment ever inflicted against him other than some threatening messages that there is no evidence of any real intention of anyone to seriously harm or kill him, that in any event it was a private personal dispute between him and the son of the Mayor in some drunken fight without any serious consequences that it is not accepted that there would still be any adverse interest in him after all these years since he left the country, that in the absence of 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 104 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 Manila where it would be difficult if not impossible for anyone to locate him.

7.  On 13 August 2018, the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 12 February 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 19 July 2019, his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his account of event of a drunken fight between him and the son of the Mayor of Ilocos that caused him to fear of being harmed or killed by the Mayor in revenge that caused him to flee his country to come to Hong Kong to seek protection as unreliable and unbelievable, that even if his account were true that there is no reliable evidence of any real intention of the Mayor to seriously harm or kill him over such a non-consequential drunken incident which occurred years ago that it is not accepted that there would still be any adverse interest from anyone in him, and that in any event it was a private personal dispute between him and the Mayor 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 that his claim for non-refoulement protection failed on all applicable grounds.    

9.  On 29 July 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date in which he just asserted that he does not want to go back to his home country because his life is still in danger there but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application. As such and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

10.  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.

11.  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.                

12.  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.

13.  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