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HCAL 2974/2019
[2025] HKCFI 1933
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2974 of 2019
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Reyes Edgar Jr Mendame |
Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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and |
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Director of Immigration |
Putative 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 be refused.
Observations for the Applicant:
Introduction
1. This is the Applicant’s application by Form 86 filed on 9 October 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 2 October 2019 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 29 November 2018 (the “Notice”), refusing his application for non-refoulement protection.
Background
2. The Applicant is a national of the Republic of the Philippines. He arrived in Hong Kong in January 2018 as a visitor and overstayed. He surrender to the Immigration Department and made a non-refoulement claim. His claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. His claim was rejected by the Notice. His appeal against the Notice was dismissed by the Board’s Decision. He now applies for leave to apply for judicial review of that Decision.
The Applicant’s case
3. The following account of the Applicant’s case is based on the information in the Non-refoulement Claim Form prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer. In gist, he claims if returned to the Philippines, he will be harmed or killed by his classmate (the “Classmate”), the Classmate’s powerful family and the Tau Gamma Phi gang/fraternity (the “gang”) for having witnessed his Classmate’s shooting of another classmate (the “victim”).
4. The Applicant claimed that late at night on 6 January 2018, he and another classmate (“E”) saw the Classmate shooting the victim. He knew the Classmate and the victim had some grudges at school. He was afraid to make a report to the police. He was told that the Classmate came from a powerful and influential family with relatives in the police force and an uncle who is a mayor. On the following day, he was asked by the victim’s family to be a witness. He agreed. About seven days later, he gave a statement at the police station.
5. On 12 January 2018, the Applicant learned from the victim’s family that they had told his Classmate to be prepared as they had a witness against him.
6. On following day, he happened to meet the Classmate in a market. The Classmate threatened him. He did not make a complaint about the threat to the police as he was afraid of the Classmate.
7. On 16 January 2018, he met the Classmate and three unknown men in the market. His Classmate assaulted him and threatened to kill him, if he continued to be a witness. He did not make a complaint to the police as he thought that would further anger the Classmate. On the advice of his family, he fled to Hong Kong.
8. In October 2018, he was informed by his mother that his Classmate was still looking for him and that the case against his Classmate had been suspended pending his return to the Philippines.
9. The Applicant said his other classmate, E, had no problem as he refused to be a witness. Having given a statement to the police, he thought he could not withdraw from being a witness. He also thought he could not relocate to another part of the Philippines as his Classmate’s influential family can easily find him anywhere in the Philippines. He did not consider he could access state protection as his Classmate has relatives in the police and is a member of the Tau Gamma Phi gang/fraternity.
The finding of the Board
10. The Applicant testified before the Board. The Board assessed his claim on the basis of the case as he asserted, but had concerns regarding the plausibility of some aspects of his claim. The Board considered it obvious that the Classmate would be aware both the Applicant and E were potential witnesses. It therefore found it difficult to accept that his Classmate only became aware of there being any witness after the victim’s family taunted the Classmate about that being so. It was also concerned why his Classmate never targeted E for harm. It was not satisfied with the Applicant’s explanation that he lied in his statement to the police saying that he was the only person present at the shooting and that his Classmate was only targeted him because E never spoke up about the shooting. In response, the Applicant made a new allegation that his family told him that E has left their home village. The Board was also concerned why the Applicant and E made no effort to help the victim after the shooting, particularly as they were very close friends at high school and the university. It found his explanation that they were afraid and expected someone would pass by the site of shooting before long and helped unpersuasive.
11. While accepting the Classmate’s family was powerful, the Board was not willing accept they had influence over the police or the courts for, if they had, they would have been able to evade his Classmate being ever arrested, charged, prosecuted or caused the prosecution to be thrown out once it came to light that the “star witness” had left the Philippines
12. As for the Applicant’s fear of the gang, the Board found on the basis of authoritative and credible country of origin information (“COI”) that there were six deaths over 40 years involving hazing rituals and the gang, but the COI did not suggest the gang was involved in criminal activities or was ‘dangerous’.
13. The Board accepted the Classmate would be motivated to harm the Applicant because he had witnessed the shooting and there is a more than remote or speculative risks that his Classmate may harm him if he is refouled to the Philippines and resumes living in his hometown, Visayas. However, it considered the dispute between the Applicant and his Classmate is a private dispute. Hence any harm likely to be suffered by the Applicant would not be on account of a reason protected under the1951 Convention relating to the status of Refugees and its 1967 Protocol nor would it involve any official or person acting in an official capacity for the purpose of Persecution Risk or Torture Risk grounds. On the balance of the evidence, it consider there are no real risks if the Applicant relocates to live in Manila. While there may be speculative risks that his Classmate, family or associates will become aware of his location in Manila, the Board did not accept the gang would be willing or able to assist the Classmate to locate the Applicant. Given his background, the Board also found it would not be unduly harsh for him to relocate
14. For the same reason, the Board accepted that the Applicant would face a real risk of cruel, inhuman and degrading treatment or punishment or being arbitrarily deprived of his life by his Classmate, his associates/family, but as internal relocation is a feasible option to avoid the harm and risks, the Board found he would not face any real risk of proscribed harm if he is refouled to the Philippines and relocates to live in Manila.
15. The Board therefore came to the conclusion that the Applicant is not entitled to non-refoulement protection under any of the applicable grounds under the USM. Hence, it dismissed his appeal.
Legal principles applicable to judicial review
16. 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
17. The Applicant did not advance any ground of application in his Form 86 or supporting affirmation. After the above legal principles had been explained to him, he confirmed he had no complaint about errors of law, procedural unfairness or irrationality in the Decision, but insisted that his life would be at risk if he is returned to the Philippines. In effect, he is challenging the Board’s finding of fact that he would not be at risk of any proscribed harm if he is relocated to Manila on his return to the Philippines. This is not permissible. In the absence of specific grounds of application, the Court in an application for judicial review could only focus on the usual challenges of errors of law, procedural unfairness or irrationality in the Decision.
Overall scrutiny
18. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, this 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. The Board assessed the Applicant’s claim on the basis of his case as he asserted. It accepted that there is a more than remote or speculative risk that his Classmate may harm him if he is refouled to the Philippines and resumes living in his hometown. It found as a fact that this risk may be avoided if he relocates to big cities such as Manila. Applying the law applicable to non-refoulement protection to these facts, it further found such risk falls outside of Torture Risk and Persecution Risk grounds and, even if it does not, all proscribed risks, including such risk, would be avoided if the Applicant relocates to Manila on his return to the Philippines. These are mixed finding of fact and of the law. Insofar as they are finding of the law, they are absolutely correct. Insofar as they are finding of fact, they 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 detect no error of law in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his entitlement to protection under the USM. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.
Conclusion
19. For the above reasons, the leave application is refused.
Dated the 13th day of May 2025
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( Seline Sze )
for Registrar, High Court |
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 the Applicant’s 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 13/05/2025
Reyes Edgar Jr Mendame
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 13/05/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 14763/18/12/120/F963
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 4139/18 (Formerly RBCZ 10565/18) [T5 S135]
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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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 23 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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