VALDEZ JEYSON BALDO v. TORTURE CLAIMS APPEAL BOARD

HCAL 621/2019

[2022] HKCFI 3204

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 621 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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 38-year-old national of the Philippines who arrived in Hong Kong on 19 September 2012 as a visitor with permission to remain up to 3 October 2012 when he did not depart and instead overstayed, and was arrested by police some 6 months later on 30 April 2013. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to the Philippines he would be harmed or killed by his creditor over his unpaid debts. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Barangay San Carlos, Santa Marcela, Province of Apayao, the Philippines. After leaving school he worked as a salesman, got married and raised a family with 2 children in his home district.

3.  In 2007 he started his own business selling second-hand goods in his shop by relying on loans borrowed from a local business woman which he managed to repay from time to time by instalments.

4.  However, by 2012 as his business was not doing well, he started to default with his loans repayments, and one night in September 2012 he received a threatening call from his creditor over his outstanding loans, and several days later 2 men armed with pistols were seen outside his home, but the Applicant managed to hide in a neighbour’s home and avoided those men.

5.  As those men were seen returning to the vicinity of his home looking for him, the Applicant became fearful for his life and fled to Baguio City to take shelter in his aunt’s place, and on 19 September 2012 he departed the Philippines for Hong Kong where he subsequently overstayed, and upon his arrest by the police some 6 months later, he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 9 February 2015 and attended a screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 28 May 2015 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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”).

7.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his creditor and followers upon his return to the Philippines as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there was no evidence of any real intention of them to seriously harm or kill him other than to press him for repayment of his debts, that in any event it was a private monetary dispute between him and his creditor without 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 107 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 part of the country away from his home district in large cities such as Manila where it would be difficult if not impossible for his creditor to locate him.

8.  On 11 June 2015 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 25 August 2016 before the Board during which he gave oral evidence and answered questions raised of his claim by the Adjudicator for the Board. On 7 March 2017 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board doubted the credibility of his claim of fear of harm from his creditor for his departure of his home country for Hong Kong without raising his claim first upon arriving in Hong Kong until more than 6 months later and only after his arrest by the police, but found in any event it was a private monetary dispute between him and his creditor 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 for him to move safely to other part of the country away from his home district without any risk of being located by his creditor that his claim for non-refoulement protection failed on all applicable grounds.

10.  Meanwhile on 6 April 2017 the Director on his own initiative invited the Applicant to submit any additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”), and in the absence of any response from him, the Director by a Notice of Further Decision dated 18 July 2017 also rejected the Applicant’s BOR 2 Claim upon finding that the facts of his case did not engage the BOR 2 ground and that he had also failed to establish any personal or real risk of his absolute and non-derogable rights under the HKBOR including right to life under BOR 2 Risk being violated upon his return to the Philippines.

11.  On 21 August 2017 the Applicant again lodged an appeal to the Board against this further decision of the Director, but as his Notice of Appeal was found to have been filed outside the 14-day period required by Section 37ZS (1) of the Immigration Ordinance, and in pursuance of Section 37ZT (2) of the Ordinance, the Board proceeded to decide as a preliminary decision without a hearing whether to allow the late filing of the Applicant’s Notice of Appeal, and by a notice of decision dated 22 February 2019 the Board refused to allow the late filing of the Applicant’s Notice of Appeal upon finding that it was some 2 1/2 weeks late, that the delay was substantial and inordinate, that there was no good reason from the Applicant for his such delay, nor was there any special circumstances including any merits of his appeal that would make it unjust not to allow the late filing of his Notice of Appeal.

12.  On 5 March 2019 the Applicant filed his Form 86 for leave to apply for judicial review of this second decision of the Board, but no ground for seeking relief was given in his Form or in his supporting affidavit of the same date to which he just attached a copy of the Board’s decision 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, and given the factual basis of the Applicant’s claim even on his own case that it simply did not engage the BOR 2 ground in its limited scope, there is simply no reasonably arguable basis for his intended challenge.

13.  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.

14.  In the Applicant’s case, the fact is that it has also been correctly established by both the Director and the Board in their earlier decisions that the risk of harm in his claim if true 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.

15.  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 on all applicable grounds.

16.  For the reasons given, I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and accordingly I 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