MALIWANAG NESTOR MARCIAL v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 888/2017

[2018] HKCFI 1431

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 888 of 2017

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

Following:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The applicant is a 58-year-old national of the Philippines who last arrived in Hong Kong in 1999 with permission to work as a domestic helper until the expiration of his employment contract on 21 February 2002 or within two weeks of its early termination.  However, when his contract was prematurely terminated in 2001 he did not depart and instead overstayed until 4 October 2015 when he was arrested by the police for possessinganother person’s identity card.  After serving a 12 months’ imprisonment and was released to the Immigration Department for deportation, he raised a non-refoulement claim on 2 November 2015 on the basis that if he returned to the Philippines, he would be harmed or killed by the New People’s Army (“NPA”) or by the Philippines military.  He has since been released on recognizance pending the determination of his claim.

2.  The applicant was born and raised in Dau Pamintuan Village, Mabalacat, Pampanga, the Philippines.  After leaving school he worked as a cleaner, and in 1978 he joined the NPA, the armed wing of the Communist Party of the Philippines which conducted guerrilla warfare against the Philippines government.  As a member the applicant would carry out tasks in Mabalacat and Tarlac provinces spreading propaganda and collecting money and food from the villagers.

3.  One day in November 1989 the applicant together with two other NPA members were abducted by the Philippines military personnel and kept in a compound for more than six months during which he was tortured until he agreed to divulge everything he knew about the NPA and to act as their informer.  When he was eventually released he returned to the NPA but felt that the other members were suspicious about his disappearance.

4.  In about 1995 the applicant became concerned that he may be pursued by both the NPA and the military and decided to leave the Philippines for his own safety and came to Hong Kong in 1996 to work as a domestic helper, and whenever he returned to the Philippines during his annual leave he would keep a low profile to avoid any contact with the NPA or the military personnel.  However, in 2001 when his employment contract expired and when he was unable to find further employment, he overstayed in Hong Kong until he was arrested by the police in October 2015 and subsequently raised his non-refoulement claim, for which he completed his Non-refoulement Claim Form on 26 August 2016 with legal representation from the Duty Lawyer Service.     

5.  By a Notice of Decision dated 17 October 2016 the Director of Immigration (“the Director”) rejected his claim on all applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of his absolute and non-derogable rights under the Hong Kong Bill of Rights (“HKBOR”) being violated including his 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 found on the facts of the applicant’s case no reasonable likelihood that the risk of harm from the NPA and the military personnel is real or foreseeable or that after more than 20 years that they would still have any adverse interest in him, that he was able to travel to the Philippines in the 1990s without any incidents, that state protection would be available to protect him from the NPA, and that objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in the Philippines with a large population of 102 million people spread across more than 300,000 square kilometers that the applicant can safely move to areas away from his home district such as Manila or Quezon.

7.  On 25 October 2016 the applicant filed his appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, for which he attended an oral hearing on 29 June 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 9 November 2017 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board found the applicant’s account of his claim failed completely in relation to its internal coherence and level of reasonable detail and the fundamental discrepancies in his account during the oral hearing which struck at the very core of his claim and undermined its central element, and that he could provide no reasonable explanation for such fundamental difficulties that the adjudicator found fatally undermined his credibility for the reasons set out in details in paragraphs 27 – 49 of the decision, and concluded that the applicant failed to establish his claim on all the applicable grounds.  

9.  On 14 November 2017 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but neither in it nor in his supporting affidavit of the same date did he provide any ground for his intended challenge other than just exhibiting copies of those decisions, notice of hearings and the hearing bundle for his appeal before the Board, nor was he able to do so at the oral hearing of his leave application before me other than just claiming that the Director and the Board had focused on the wrong issue but unable to providing any further particulars or elaborations, and insisted that the court should consider his claim again.  

10.  As noted by the Court of Appeal in TK v Jenkins & Anor [2013] 1 HKC 526, the court in judicial review does not sit on appeal from the decisions of the Director or the adjudicator in dismissing the claims, but instead only plays a supervisory role by lookingat its legality under the public law involving usually the broad grounds of any error of law committed by the Director or the adjudicator, or any procedural unfairness, or whether the decision is irrational or Wednesbury unreasonable in the public law sense. 

11.  In the absence of any grounds put forward by the applicant, I have nevertheless proceeded to consider the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, and 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.

12.  Given the Director’s clear finding on the facts of the applicant’s own case of the availability of state protection and reasonable internal relocation alternatives to him upon his return to the Philippines, whilst his claim was rejected by the Board essentially on his credibility of which the adjudicator was entitled to do based on the facts and evidence before her which the court will not usurp her role as the primary decision-maker, and in the absence of any particulars or specifics from the applicant to demonstrate how orwhere the Director or the Board had erred either as to facts or evidence in their evaluations, I am of the firm view that there cannot be any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave 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