MENDAME ERICK v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2037/2019

[2024] HKCFI 2559

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2037 OF 2019

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J U D G M E N T

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 17 June 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.  The applicant asked for a hearing. However, he was absent at the hearing on 4 September 2024. I shall deal with his application on paper.

The applicant

3.  The applicant, aged 31, is a Filipino.  He last arrived in Hong Kong as a visitor on 19 November 2016 and overstayed since 4 December 2016. The applicant surrendered to the Immigration Department on 22 December 2016 and he made a non-refoulement claim on 23 March 2017 and 10 May 2017. The claim was made on the basis that, if refouled, he would be arrested by the police for drug trafficking.

4.  According to the applicant, since June 2016, he had been working as a driver for a drug dealer family, Odecta. On or about 29 August 2016, Mr and Mrs Odecta were shot dead. About two weeks later, the applicant was invited to attend a police station, where he was forced to admit engagement in a drug transaction.  Upon the applicant’s refusal, he was assaulted by the police officers.  After being detained for four days, the applicant was released.

5.  In October 2016, the applicant fled when the police officers attended his home. He was informed by his brother the next day that ten pieces of suspected drugs were found at his home. The applicant believed that the police wanted to frame him up with drug offences due to his connection with the Odecta family.  He stayed at his friend’s home for three days and then went to Manila. Eventually, upon advice from another friend, the applicant left the Philippines for Hong Kong on 19 November 2016.

6.  The applicant was unsure about the measures against the misconduct of the police. He also considered internal relocation not viable because he believed that the police could easily locate his whereabouts.

7.  Details of the story of the applicant can be found in paragraph 5 of the Director’s Decision dated 13 August 2018 (“the Director’s Decision”).

The Director’s Decisions

8.  The Director considered the applicant’s claim in relation to the following risks:

a.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”)  (“BOR 2 risk”);

b.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”)  under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”);

c.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”)  (“Persecution risk”); and

d.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”)  (“Torture risk”).

9.  By way of the Director’s Decision, the Director dismissed the applicant’s claims. The Director found that: (i)  the low intensity and frequency of past ill-treatment from the police indicated that the small future risk of harm upon his return to the Philippines [10]; (ii)  state protection would be available and there was no evidence that he was wanted by the government given his uneventful departure from the Philippines [11]-[17]; (iii)  internal relocation would be viable [18]-[19] and (iv)  the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [20]-[25], Persecution risk [26]-[30] or Torture risk [31]-[33].

The Board’s Decision

10.  The applicant appealed the Director’s Decision to the Board. On 22 May 2019, the Board conducted an oral hearing.  

11.  Although the country of origin information confirmed the applicant’s claims about the shooting of Mr and Mrs Odecta, the Board did not accept the applicant’s involvement in this incident or his association with the Odecta family because of the significant inconsistencies in his evidence regarding (i)  his employment; (ii)  the circumstances surrounding his discovery about the death of Mr and Mrs Odecta; and (iii)  the circumstances of his apprehension by the police. Furthermore, the applicant’s claim about the planting of drugs by police at his home was also not credible [31]-[36].

12.  The Board was not satisfied that any of the applicant’s claims were truthful and considered that the totality of his claims had been fabricated [37]. Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Torture risk, BOR 2 and BOR 3 risk or Persecution risk [38]-[54].

13.  The applicant’s appeal was therefore dismissed and the Director’s Decision was confirmed.

Application for leave to apply for judicial review of the Board’s Decision

14.  The applicant has filed Form 86 dated 17 July 2019 for leave to apply for judicial review of the Board’s Decision.

15.  In his affidavit in support of his application, the applicant did not raise any specific ground to challenge the Board’s Decision.

DISCUSSION

16.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

17.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

18.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1)  … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

19.  The Board, for the reasons given above, found that the applicant had fabricated his case.  At paragraph 27 of the Board’s Decision, the Board stated:

“When advised of the numerous inconsistencies in relation to various aspects of his evidence, the Appellant said he worked for a “big family” and his life is in danger if he returns to the Philippines.”

20.  There is no reason that the Court should interfere with the Board’s finding of the facts.

21.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

22.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss his application.