IRANGAN ARIEL SUABILLO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2246/2018

[2021] HKCFI 3452

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2246 of 2018

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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 Applicant being absent in open court;

Order by Deputy High Court Judge K.W.  Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review of the Decision dated 11 October 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”).

2.  The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the matter is dealt with on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (the “Director”) is the interested party.

The applicant

4.  The applicant is a citizen of Philippines.  He last entered Hong Kong on 6 May 2007 and was permitted to stay until 12 June 2007.  He overstayed and was arrested by the police on 21 April 2009.  He lodged a torture claim on 22 April 2009.  Upon the commencement of unified screening mechanism, his torture claim was taken to be a non-refoulement claim.  

5.  The applicant claimed that if refouled, he would be harmed or killed by the Espinosas, in particular, the ex-vice mayor Ramon Espinosa (“Ramon”), because of a debt problem.  According to the applicant, the Espinosas was a rich and influential family.  In 1999, the applicant borrowed money from Jerson, father of Ramon, to finance his wife’s application to Hong Kong as a domestic helper.  Later, he had fully settled the debt and was only informed verbally by Jerson that his debt was fully paid.  In 2006, the applicant became Ramon’s campaign manager.  However, Ramon lost the election and vented the anger on the applicant.  He accused the applicant of still owing money to his family.  On 3 November 2006, the applicant claimed to be kidnapped by Ramon’s men.  The next day, the applicant successfully escaped but he did not report to the police as he feared that Ramon would abduct him from the police station.  Out of fear, he fled to Hong Kong for protection.  Details of his story are set out in paragraph 6 of the Director’s Decision described below and paragraphs 4-13 of the Board’s Decision.

The Director’s Decisions

6.  The Director considered his application in relation to the following risks:

a.  risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

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

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

d.  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”).

7.  By Notice of Decision dated 26 January 2015 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated on the grounds on Persecution risk, BOR3 risk and Torture risk. The Director found that the level of risk of him being harmed or killed by the Espinosas upon refoulement was assessed to be low [13]-[16]; that the Espinosas’ influence was limited [17]; that state protection was available to him [18] and that internal relocation was an option open to him [19]-[22].  In a Notice of Further Decision dated 18 November 2016, the Director also rejected his claim on BOR2 risk.

The Board’s Decision

8.  The applicant appealed against the Director’s Decision.  On 9 December 2016, the applicant appeared before the Board and answered inquiries from the Board.  The Board noted that the applicant had made various bases for his claim: (1) he was threatened by a notorious gang and New Peoples’ Army; (2) he was threatened by the Espinosas; (3) there was a war against criminal drug activities [4] and [22].

9.  By the Board’s Decision, the Board affirmed the Director’s Decision and dismissed his appeal.  The Board evaluated the applicant’s evidence and found that the material aspects of his claim were not established.  It found that there was no evidence suggesting that Ramon had intention of harming the applicant.  Ramon only inflicted verbal threats and such grudge was based on the suspicion that the applicant might betray him, instead of the momentary claim.  The grudge should pale out in the course of time.  The kidnap incident was not a well-prepared one and no physical injuries were involved.  As a result, based on the past experience, the Board assessed the future risk of harm from Ramon to be low [24]-[29].  In passing, the Board also assessed the applicant’s credibility from other aspects, such as the different claims he raised, the fact that the alleged debt was small and he ought to use his travel expense to cover whole or part of it, and that he failed to raise the non-refoulement claim as soon as possible.  All these considered, they undermined his credibility [33]-[37].  In any event, state protection and internal relocation were both available to the applicant [30]-[32].    

Application for leave to apply for judicial review

10.  The applicant filed Form 86 dated 16 October 2018 for leave to apply for judicial review of the Board’s Decision.

11.  In his affidavit in support of his application, he enclosed the Board’s Decision without setting out his grounds in support of his application.

DISCUSSION

12.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its 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, CA. §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

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

14.  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.”

15.  He has submitted no valid ground to assist his application.

16.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

17.  There is no evidence to show that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

18.  I therefore refuse to grant leave for the applicant to apply for his intended judicial review.  Accordingly, I dismiss his 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