LAZARO JESSIE EULALIO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1868/2024

[2025] HKCFI 63

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1868 OF 2024

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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 16 September 2024 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. He appeared before this Court on 25 November 2024.

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

The applicant

4.  The applicant, aged 50, is a Filipino. He last entered Hong Kong on 3 April 2014 and had overstayed since 10 July 2014. The applicant was arrested by the police on 28 April 2024 for overstaying and he made a non-refoulement claim on 5 May 2024. The claim was made on the basis that, if refouled, he would be harmed or even killed by the husband and father-in-law of his girlfriend (“VMT”).

5.  According to the applicant, he first came to Hong Kong on 9 July 2013. In around August 2013, he met VMT, who was already married, and had an affair with her. In around late 2021, the applicant was informed by his daughter that VMT’s husband had become aware of his affair with VMT and threatened to kill him with his father, i.e. VMT’s father-in-law.

6.  The applicant was of the view that he could not seek protection from the police because he had no money to bribe them. He considered internal relocation not viable as well because VMT’s husband belonged to a fraternity that had nationwide network and that he also lacked the necessary financial capability for relocation.

7.  Details of the story of the applicant can be found in paragraph 6 of the Director’s Decision dated 25 June 2024 (“the Director’s Decision”).

The Director’s Decision

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 on Torture risk, Persecution risk, BOR 2 and BOR 3 risk. The Director found that: (i) the absence of past ill-treatment received by the applicant indicated that his claimed risk of harm was not real nor foreseeable [14]; (ii) the applicant’s delay in seeking non-refoulement protection was inconsistent with the conduct of someone genuinely in fear [15]; (iii) there was no evidence showing that VMT’s husband and father-in-law had the means to track him down anywhere within the Philippines [16]; (iv) state protection would be available [17]-[20] and (v) internal relocation would be viable [21]-[22].

The Board’s Decision

10.  The applicant appealed the Director’s Decision to the Board. On 10 September 2024, the Board conducted an oral hearing.

11.  Given the very nominal knowledge the applicant had about VMT’s husband and father-in-law, the Board had doubts as to their existence. In fact, the applicant’s affair with VMT was also doubtful as he lacked knowledge about her and had no proof to support such affair. All these showed that the applicant’s claim was not credible nor reliable [59]-[64].

12.  In any event, taking the applicant’s case to the highest, the absence of ill-treatment by VMT’s husband and father-in-law against the applicant and his family indicated that they had no real intention to seriously harm or kill him. There was also no evidence indicating state involvement in the matter [65]-[81].

13.  Based on such findings and in light of the country of origin information indicating the availability of state protection [39]-[46], the Board rejected the applicant’s claim on Persecution risk, Torture risk, BOR 2 and BOR 3 risk [83]-[117], [123]-[126]. Furthermore, internal relocation would also be a viable option [120]-[122].

14.  The Board therefore dismissed the applicant’s appeal and confirmed the Director’s Decision.

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

15.  The applicant has filed Form 86 dated 18 October 2024 for leave to apply for judicial review of the Board’s Decision.

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

DISCUSSION

17.  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).

18.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that he did not mean that the Board was wrong. But he wanted the Court to review the Board’s Decision.

19.  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.”

20.  The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded. There is no valid ground from the applicant to challenge the Board’s Decision.

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

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

DISPOSITION

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