GUANZON NOEL TORRES v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1431/2018

[2020] HKCFI 2735

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1431 OF 2018

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 submission by the Applicant in open court.

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is an application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) confirming the decision of the Director of Immigration (“the Director”) refusing the Applicant’s claim of non-refoulement protection.

2.  The Applicant, born in 1982, is a national of the Philippines.  He arrived in Hong Kong on 12 September 2015 and was permitted to remain until 26 September 2015 as a visitor.  He overstayed and remained in Hong Kong unlawfully.  On 7 October 2015, he surrendered himself to the Immigration Department and lodged a non-refoulement claim.  He was subsequently released on recognizance.

3.  The facts of the case and the basis for the Applicant’s non-refoulement claim are summarized at para [17-30] of the decision of the Board.  Put simply, the claim was based on the fear that, if refouled, the Applicant would be harmed or even killed by his separated wife, his ex-girlfriend’s husband as well as his current co-habitant’s husband.  He claimed that he separated from his wife in December 2013.  He came to know a Filipino woman (his ex-girlfriend) when he later worked in Taiwan and they had a baby from their relationship.  They broke up in 2015.  He is now co-habiting with another Filipino woman who is also a non-refoulement claimant in Hong Kong.  They have a son born in 2017.  In June 2015 when he returned to the Philippines, a stranger who claimed to be the husband of his ex-girlfriend punched him at his face and threatened to kill him before he left.  Since that incident, he frequently saw strangers appearing in the neighbourhood of his home.  He believed they were sent there by his ex-girlfriend’s husband.  He also feared that his current co-habitant’s husband would harm him.

The Director’s decision

4.  By a notice of decision dated 28 February 2018, the Director rejected the Applicant’s non-refoulement claim on all applicable grounds for reason that the claim was not substantiated.  Having taken into account all relevant circumstances, the Director assessed the level of risk of harm as low.  He found that state protection is available to the Applicant and internal relocation is a viable option for him, which further lower the level of risk. The decision covered torture risk^[1], BOR 2 risk^[2], BOR 3 risk^[3], and persecution risk^[4]. The Applicant lodged an appeal/ petition to the Board against the Director’s decision.

The Board’s decision

5.  The Applicant attended a hearing before the Board on 22 June 2018.

6.  By a decision dated 13 July 2018, the Board rejected the appeal/ petition confirming the Director’s decision.  The Board’s decision covered all applicable grounds.

7.  The Board gave detailed reasons for rejecting the Applicant’s claim at paragraphs [34-51] of its decision.  In a nutshell, the reasons can be summarized as follows:

(1)  the Board did not challenge the primary facts alleged by the Applicant;

(2)  however, there is no evidence that his separated wife would harm him [35];

(3)  the same applies to the husband of the Applicant’s current co-habitant [37];

(4)  the husband of his ex-girlfriend had only assaulted him once and done nothing further [38];

(5)  there is no evidence that the strangers were related to the husband of his ex-girlfriend [39];

(6)  internal relocation is a viable option for him [51];

(7)  the Applicant failed to establish that there were substantial grounds for believing that he would be subjected to any kind of harm or ill-treatment [42-43].

8.  Accordingly, the Board dismissed the Applicant’s appeal on all applicable grounds.

Application for leave to apply for judicial review

9.  The Applicant filed a Form 86 on 20 July 2018 for leave to apply for judicial review.

10.  No request for oral hearing has been made.  The application is therefore considered on the papers.

11.  In the Form 86 and supporting affidavit, the Applicant did not set out any proper grounds for the relief sought.  He only attached with the decisions of the Director and the Board.

Discussion

12.  The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  In particular, the role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board. Assessment of evidence, country of origin information, 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, procedural unfairness or irrationality in the decision of the Board.

13.  When the Applicant pursued the appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549. Therefore, while the court will examine the decisions of the Director and the Board with rigorous examination and anxious scrutiny, it is unnecessary to delve into the decision of the Director.  This decision will only focus on discussing the Board’s decision.

14.  In the present case, the Board did not take issue with the Applicant’s asserted primary facts and events.  It however disagreed with the Applicant on the assessment of risk flowing from such events.  Taking into account all the relevant circumstances, it rejected the Applicant’s claim based on its assessment of the risk of harm as well as its findings on the viability of internal relocation.

15.  As explained above, the assessments of evidence, risk of harm, and viability of internal relocation are primarily within the province of the Board and the Director.  This court will not interfere with their decisions unless there is a public law ground for the court to do so.

16.  The Applicant stated no grounds of the judicial review in Form 86.  He mentioned nothing in the form or in the affidavit to suggest how the Board erred in the public law sense.  In the absence of any error of law or procedural unfairness being shown by the Applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.

17.  The alleged past ill-treatment or experience were of low intensity and frequency demonstrating no real risk of future harm.  It also came nowhere near the level of severity required by law to constitute torture or CIDTP. The claimed fears for harm are wholly speculative.  The evidence can hardly establish that the Applicant would be at real risk of being subjected to any type of ill-treatment or proscribed harm, if refouled.

18.  Both the Director and the Board engaged in a joint endeavour with the Applicant and considered all relevant criteria.  They gave the Applicant a reasonable opportunity to state his case and enquired into the issues appropriately.

19.  There cannot be any criticism of the fairness and reasonableness of the decisions of the Director and the Board.

20.  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, irrational findings, or procedural unfairness in either of them.  Nor do I see any failure on their part to apply high standards of fairness in their decisions.

21.  For the reasons given, there is no prospect of success in the Applicant’s intended application for judicial review.

Disposition

22.  Accordingly, application for leave to apply for judicial review 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