VILLAJIN RODELIO BAYONETO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2983/2019

[2025] HKCFI 2586

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2983 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

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 10 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 12 September 2019 dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 15 November 2018 (the “Notice”), refusing her application for non-refoulement protection.

Background

2.  The Applicant is a national of the Philippines, now aged 54. He entered Hong Kong as a visitor on 30 August 2012 and overstayed. He then made a non-refoulement claim on 11 January 2013. In due course, 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 Director’s 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 mainly based on the information in the non-refoulement claim form prepared by her with legal assistance and the record of his screening interview in the presence of her lawyer. In gist, he claims that if returned to the Philippines, he will be ill-treated or even killed by the new People’s Army (“NPA”), an anti-government terrorist organization, in revenge for his father’s killing of two NPA members.

4.  The Applicant claimed that his father had been a soldier in the Philippine army and a bodyguard of a congressman until 2009. One day in early 2011, members of the NPA attacked the Applicant’s village and tried to extort money from the inhabitants. They entered the Applicant’s home and threatened his father. A smaller group of NPA raided the village again two weeks later. The Applicant’s father and another soldier defended the village killing two NPA members with machine gun.

5.  A month later, the NPA members came and shot at the Applicant’s home. They left a letter with a black ribbon threatening to kill the Applicant’s entire family. In around March 2011, the Applicant’s brother was kidnapped and disappeared. The Applicant believed his brother was taken by the NPA. Soon afterwards, another letter with black ribbon was left at the family home. Then, the Applicant’s father was shot dead on a motorbike by NPA members in December 2011. In around January 2012, a third letter with black ribbon was left at the Applicant’s family home. Out of fear, the Applicant abandoned his family home and moved to live with his cousin fifteen miles away until August 2012 when he fled to Hong Kong.

The finding of the Board

6.  The Applicant testified before the Board. The Board considered his account in his written statements very brief and contained almost no detail. At the oral hearing before the Board, he was unable to give even the most superficial detail. Initially, he appeared to know virtually nothing about his own claim. When pressed for detail, he gave an account which was quite different from that given in his written statements. He said he was told by his mother that his father had been involved in an argument with some distant cousins at some point in the past, which resulted in his father killing the cousins. Later, he added that those cousins were members of the NPA and they had told his father that they intended to kill the congressman for whom his father acted as a bodyguard; then his father found his cousins in the neighbourhood and shot them. Around a month later, his father was assassinated by the NPA. About six months after that the Applicant’s brother disappeared after a letter with black ribbon had been left at the family house. The Applicant then fled to Macau where he stayed illegally for around a year, returned to the Philippines and then came to Hong Kong in 2012. Notably, the order of his father’s death and his brother’s disappearance is different. He was unable to account for the inconsistencies.

7.  In view of the vagueness and superficiality in the Applicant’s testimony and his statements, the material and fundamental discrepancies in the account and the lack of explanation for the discrepancies, the Board came to the conclusion that these events have no factual basis and that the Applicant is not a witness of truth. It found there is no reasonable likelihood that his account contains any element of truth. Applying the law applicable to non-refoulement protection, the Board found the Applicant had failed to establish the factual basis to support his claim for non-refoulement protection under any of the applicable grounds under the USM and dismissed his appeal.

Legal principles applicable to judicial review

8.  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

9.  In his Form 86, the Applicant advanced the following grounds of application:

(1)  the Director’s decision is wrong, unfair and Wednesbury unreasonable;

(2)  the Director failed to give proper weightage to the presence of state acquiescence;

(3)  the Board was unreasonable and unfair by placing too much reliance on country of origin information (“COI”) but failed to take his personal background and experience in to account;

(4)  the Director was unfair in failing to take such argument into account or to give enough weight to such argument before reaching the decision;

(5)  the Director failed to attain the high standard of fairness required by the Wednesbury test;

(6)  the Board was procedurally improper or unfair when assessing whether to accept or not to accept his explanations and required him to response to questions that he was not in a position to offer any response; it failed to take into account the nexus of political parties and official corruption in his home country making persecution effectively persecution by the state; and

(7)  the Board ought to allow his appeal.

10.  Most of these grounds are directed at the Director and only two at the Board. As the Director’s decisions in the Notices were superseded by the Board’s Decision and are not the subject matter of the leave application[6], for the Applicants’ benefit, the Court assumed that all grounds are directed at the Board as well.

11.  The Court is familiar with these grounds which appear to be template grounds used in some other application and have no bearing to the facts of this leave application. While the Board might have considered the COI in its joint endeavor in establishing the Applicant’s case, it did not feature in the Board’s Decision. Similarly, state acquiescence was not relied on by the Applicant. The attacks and violence of the NPA could not have been anything acquiesced by the state. These grounds could not be substantiated at all. Apart from vagueness and lack of particulars, these grounds are all directed at the Board’s finding of fact which is solely within the realm of the Board, which the court in a judicial review will not intervene, save for errors of law, procedural unfairness and irrationality in the Decision. After the principles in the preceding section had been explained to him and in answer to the Court’s question on these matters, the Applicant confirmed that he had no complaint about error of law, procedural unfairness and irrationality in the Decision. In the absence of proper grounds or grounds with adequate particulars, the court in an application for leave to apply for judicial review could only focus its attention on these elements in its anxious scrutiny of the decision.

Overall scrutiny

12.  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 applicable to non-refoulement protection 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 analysed the evidence carefully, tested it against common sense and inherent probability. It did not find the Applicant’s evidence credible. It gave reasons for its finding. Hence, it rejected his evidence. It was on that basis that the Board found he had failed to establish the factual basis to support his claim for non-refoulement protection under any of the four applicable grounds under the USM. This is a finding of fact, which showed the Applicant had totally failed to establish the factual basis of proving his entitlement to protection under any of the applicable grounds under the USM. This is a finding exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or irrationality in the Decisions. The Court could detect no error of law or procedural unfairness in the Decisions. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant had failed to discharge his burden of proving his fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.

Conclusion

13.  For the above reasons, the Applicant’s leave application is refused.

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