SECOLLES DANIEL DE VERA v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 96/2023

[2024] HKCFI 3676

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 96 of 2023

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;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is an application by Mr Secolles Daniel De Vera (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 12 January 2023 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 29 November 2021 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant

2.  The Applicant is a Filipino. He was born on 23 December 1973 in Isabela, the Philippines. He received 11 years of education and had 23 years of work experience as a carpenter, a farmer, a mason, a delivery worker and a foreign domestic helper.

The Claim

3.  The Applicant claimed that he started working as a delivery worker for a company in Barangay Pangal Norte (“SL”) in the beginning of 2017.

4.  In around late 2018, the Applicant’s colleague (“R”) was intercepted by the Filipino police when he was delivering a parcel for SL. The parcel contained prohibited drugs and R was arrested for drug trafficking.

5.  On the following day, the police raided one of SL’s facilities and discovered more prohibited drugs. The Applicant stopped reporting for duty to SL after the raid.

6.  About a week later, an unknown man X came to the Applicant’s house with five armed men (“Incident”). X claimed to be the right-hand man of the boss of SL. X claimed that SL had ties with senior officials of the Filipino police and threatened to kill the Applicant if he left SL. X also accused the Applicant of informing the police about the prohibited drugs.

7.  X grabbed the Applicant’s collar when he issued the threat of violence towards the Applicant. Neither X nor his men inflicted any injury on the Applicant before leaving voluntarily.

8.  The Applicant later received an anonymous letter threatening to kill him if he refused to work for SL. He also received threatening packages of dead animals and human waste. The Applicant claimed that someone was monitoring his family and even issued death threats towards him through his children (together “Threats”). The Applicant therefore sent his children to his wife’s family in Nueva Ecija.

9.  The Applicant stayed at his home alone for about a month before moving to live with his cousin in Bulacan. He stayed there for five months but still faced same harassment from SL. His cousin advised him to seek employment as a foreign domestic helper in Hong Kong to get away from the Threats. He helped him with the arrangements. On 21 November 2019, the Applicant arrived in Hong Kong to work as a foreign domestic helper.

10.  The Applicant revealed in the screening interview that he had once traveled to Hong Kong in December 2018 (i.e. around the same period when he was allegedly being pursued by SL’s associates) to visit his girlfriend. He voluntarily returned to his home in the Philippines in January 2019 after staying in Hong Kong for one month.

11.  The Applicant also claimed that the Filipino police might harm him for suspected being involved in the drugs trade.

12.  The Applicant claimed that he would be harmed or killed by associates of SL or the Filipino police if he were returned to the Philippines.

Procedural history

13.  The Applicant arrived in Hong Kong on 21 November 2019 to work as a foreign domestic helper. He was arrested on 20 December 2020 on his suspected involvement in a false domestic helper employment contract. By a written representation of 1 February 2021, the Applicant lodged the Claim.

14.  The Director had considered the Claim on all applicable grounds under the Unified Screening Mechanism (“USM”), namely:

(a)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115;

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR”);

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

(d)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees.

15.  By the DOI Decision, the Director refused the Claim. The Applicant later filed an appeal/petition to the Board (“Appeal”). By the Board’s Decision, the Board affirmed the DOI Decision. The Board rejected and dismissed the Appeal.

16.  On 20 January 2023, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the Board’s Decision. The Applicant filed his supporting affidavit on the same day (“Supporting Affidavit”). In the Form 86, the Applicant named the Board as the proposed respondent and interested party.

17.  On 2 August 2024, the Applicant filed another affidavit applying to withdraw this intended judicial review application stating that all his problems had finished and he wanted to go back to his home country (“Withdrawal Application”).

The DOI Decision

18.  The Director raised doubts about the genuineness of the Claim, noting that the Applicant had stayed in Hong Kong for a month before voluntarily returned to his home in the Philippines in January 2019. The Director noted that he did not raise any claim for protection in Hong Kong during this period.

19.  The Director also noted that the low intensity and low frequency of past ill-treatment from associates of SL was indicative of a small future risk of harm upon the Applicant’s return. X and his men had the opportunity to seriously harm the Applicant but refrained from doing so. Taking into account the threat posed by members of SL, the mode, frequency and extent of the past ill-treatment caused to the Applicant, and the non-existence of physical abuse inflicted on or injuries sustained by the Applicant, the Director was of the view that the ill-treatment inflicted on the Applicant by members of SL, be it physically or mentally, hardly attained a minimum level of severity.

20.  The Applicant had been staying at his home or his cousin’s home for around 6 months after the Incident without encountering any members of SL. The Director was of the view that it was inconceivable that if members of SL really intended to harm or kill the Applicant, they would just make the Threats to the Applicant rather than visiting the Applicant to harm or kill him. The Director found that the Applicant’s assertion of risk of being killed by members of SL upon his return to the Philippines was too far-fetched.

21.  The Applicant’s conduct of not taking the first available opportunities to seek protection when he visited Hong Kong in around January 2019 to see his girlfriend or when he came to Hong Kong again in November 2019 for employment showed that he was not really feared of the members of SL and the Filipino police or otherwise their acts against the Applicant were not as threatening as the Applicant claimed.

22.  There were nothing to indicate that there were government officials or anyone acting in an official capacity involved in the Applicant’s personal dispute with SL. There was also no indication that the State of the Philippines was involved in, indifferent to or provided any form of encouragement to the members of SL in threatening or harming the Applicant. On the issue of state protection, after considering the relevant country of origin information (“COI”), the Director found that reasonable state protection would be available to the Applicant, if necessary.

23.  The Director did not accept that the Filipino government had any adverse interest in the Applicant as he was able to leave and re-enter the Philippines with his own passport. The Applicant’s alleged threat of being harmed by the Filipino police was not as real as the Applicant perceived.

24.  There was insufficient evidence suggesting that members of SL had the ability and resources to track down the Applicant everywhere in the Philippines. The Director found that internal relocation would be viable to the Applicant. If the Applicant moved to Manila or Cebu, members of SL would have great difficulties in locating him. After considering his age and work experience, the Director found that it would not be unduly harsh to expect him to relocate and lead a normal life.

25.  For the reasons set out in the DOI Decision, the Director rejected the Claim.

The Board’s Decision

26.  After considering the Applicant’s claims including his written evidence, the record of his interview, his notice of appeal and his oral evidence given at the hearing before the Board, the Board found the Applicant incredible.

27.  The Board noted that the Applicant’s evidence was vague, incoherent, garbled and inconsistent and that there was no good explanation for the poor quality of his evidence. He could not even state the address of SL or where it was or describe it. He could not name his supervisor or any of his colleagues. He could not tell how his working day unfolded, how he was provided with details of deliveries, how he was paid, or anything relating to how the work was carried out. The Board found that the Applicant could not possibly ever have worked as a delivery driver as he had claimed.

28.  The Board also found his entry into Hong Kong and voluntary return to his home after the relevant events to be inconsistent with his claim that he was facing serious harm from associates of SL and the Filipino police.

29.  The Board rejected the Applicant’s evidence in its entirety and found that his entire claim was a fabrication.

30.  The Board found that the Applicant had failed to establish his case on all applicable grounds under the USM. The Board affirmed the DOI Decision and dismissed the Appeal.

Legal principles applicable to judicial review

31.  In a judicial review, the court does not step into the shoes of the decision makers.

32.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“The role of the court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. 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”.

33.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be a reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

34.  The Applicant did not advance any grounds for his intended judicial review in the Form 86. In the Supporting Affidavit, the Applicant only stated that: “All the Attachments are true. Torture Claims Appeal Board/Non-Refoulement Claims Petition Office make Decision 08 pages.” The Applicant produced the Board’s Decision as exhibit to the Supporting Affidavit without other supporting documents.

35.  No proper ground for his intended challenge was stated in the Form 86 and/or the Supporting Affidavit. The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in affirming the DOI Decision, or in what way was the Board’s Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters.

36.  Having rigorously examined the Board’s Decision and the DOI Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness.

37.  The Board found that the entire claim of the Applicant was a fabrication. There was no basis to conclude that there would be any real risk to the Applicant’s right to life or that he would face the prospect of torture or cruel, inhuman or degrading treatment or punishment upon his return to the Philippines.

38.  It was on such basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection under any of the four applicable grounds under the USM. These are findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness and irrationality. In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The proposed judicial review has no realistic prospects of success.

The Withdrawal Application

39.  The Applicant subsequently filed the Withdrawal Application on 2 August 2024 applying to withdraw this intended judicial review application. He stated that his mother was very sick and he wanted to return home.

40.  There is no evidence to show that the Applicant made the Withdrawal Application other than out of his own volition.

41.  Apart from the Withdrawal Application, there is nothing outstanding in this action.

42.  The Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 at §19(1) that:

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

Conclusion

43.  In the premise and having considered the Board’s Decision and the DOI Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss his application for leave to apply for judicial review.

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