CUENTO GILBERT RANEIS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1855/2019

[2024] HKCFI 2051

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1855 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 the Applicant in open court.

1.      Leave to amend the Form 86 be granted;

2.      The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant (Order by Deputy High Court Judge To):

Introduction

1.  This is the Applicant’s application by Form 86 filed on 3 July 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board/ Non-Refoulement Claims Petition Office (the “Board”) dated 12 April 2019.  When his leave application came to be processed, it was revealed that he had already been removed on 30 January 2023.  But he had never informed the Court about his removal. 

2.  The Applicant had not requested an oral hearing.  Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered his application may be justly determined on paper without an oral hearing. 

3.  In his supporting affidavit, the Applicant alleged that his non-refoulement claim was rejected by an immigration officer on 12 April 2019 and annexed a copy of the decision which he sought to judicially review.  That decision is in fact a decision of the Board dated 20 June 2019 which dismissed his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 7 November 2018 (the “Notice”).  The Board had not made any decision relating to the Applicant dated 12 April 2019.  That date was the date of the hearing of his appeal before the Board against the Director’s decision in the Notice on 12 April 2019.  Piecing these information together, it is obviously the Applicant’s intention was to seek judicial review of the Board’s Decision dated 20 June 2019 dismissing his appeal against the decision of the Director in his Notice dated 7 November 2018 rejecting his application for non-refoulement protection.  Accordingly, leave is granted to amend his Form 86 to give effect to his intention.

The Applicant’s case

4.  The Applicant is a national of the Philippines, now aged 47.  He had 12 years of education and worked as a construction worker in the Philippines.  He was married but separated and has two sons in the Philippines.  He arrived in Hong Kong as a visitor on 8 April 2016 and departed on 21 April 2016.  He arrived again on 20 August 2016 and overstayed since 17 September 2016.  He was arrested for overstaying on 1 February 2017.  On 23 February 2017, he applied for non-refoulement protection. In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (“USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4].  His claim was rejected by the Director’s Notice.  His appeal against the Notice was dismissed by the Board’s Decision.  He now seeks leave to apply for judicial review of that Decision. 

5.  The Applicant’s claim is that he would be killed by the uncle of the husband of a woman with whom he had developed a relationship (“Lorna”) and by the Philippines government for being a drug dealer and drug abuser.  In gist, he claims he had been told by Lorna that her husband’s uncle (“Boy”) was a high ranking member of a terrorist group known as the New People’s Army.  He alleged that Boy and his men had come to his aunt’s house looking for him a number of times and threatened to kill him. He last saw Lorna on 12 June 2016 when Boy and his men found him and assaulted him.  He escaped and hid in Bulacan for two weeks to recuperate from the injuries.  He left the Philippines on 20 August 2016 and came to Hong Kong.

6.  The Applicant alleged that before he left the Philippines, he found out his name was on the list of drug dealers in Bulacan subject to be killed under the “Oplan Tokhang”, President Duerte’s anti-drug campaign. 

7.  He said he cannot return to the Philippines as the New People’s Army has a strong network nationwide and can locate him and harm him.  In addition, he believes that he may be arrested by the police for being a drug dealer.

The finding of the Board

8.  The Board considered the Applicant has provided a relatively consistent account of what he claimed had happened to him before he left the Philippines and accepted his account.  However, it was not satisfied that there is a real risk of the Applicant being harmed should he return to the Philippines. 

9.  The Board accepted the Applicant’s claim that Boy had a gun when he attacked the Applicant.  Thus, Boy could have shot and killed the Applicant if he wished, but he did not.  Not only that, he did not pursue the Applicant after their attack.  The Board therefore found that Boy’s intention was to put an end to the Applicant’s relationship with Lorna and he had achieved his purpose.  Furthermore, according to the country of origin information, the New People’s Army is now a much reduced force of about 4,000 only.  Its base is in Mindanao which is a long way from the Applicant’s area.  Hence, the Board was satisfied that the Applicant would only face an extremely low risk of being harmed in the future by Boy, particularly if he does not return to Lucena where Lorna lives.

10.  The Applicant is a self-confessed drug dealer.  His evidence about his drug involvement in about 2007 was detailed and convincing.  He said he worked for a retired police officer and did not believe his activities during that time will be a problem for him if he returned to the Philippines.  His concerns relate to his drug activities for the two months during his recuperation in Bulacan prior to leaving the Philippines in 2016.  But, his evidence is equivocal.  He said he needed money.  He contacted his former drug boss and delivered ice for him.  Before he left the Philippines, he found out his name was published on the list of drug dealers to be killed under President Duterte’s anti-drug campaign.  However, despite being questioned several times about his source of fear, he asserted that Boy was his only fear of harm.  If he had a genuine fear of being killed by the government, that would have been uppermost in his mind.  But that was not. His evidence was that he does not know how his name came to be placed on the list.  It is not clear how he would have been known to the police and other authorities in Bulacan as he only lived there for two months during his recuperation.  The Board was therefore driven to reject his evidence that he had resumed working with a drug boss or that his name was placed on a list of drug dealers and abusers before he left the Philippines.  The Board considered this claim fabricated.  It was not satisfied that there is a real risk that he would be subjected to significant harm for this reason if he returns to the Philippines, whether by Boy or by the Philippines government.

11.  For the above reason, the Board found his claim under Persecution Risk ground is not well-founded.  It found the Applicant will not be at risk of being subjected to torture or cruel, inhuman or degrading treatment or punishment as to constitute a breach of BOR 3.  Similarly, it was not satisfied that there is a real risk that he will be arbitrarily deprived of his life and that returning him to the Philippines would expose him to a real risk of violation of his right to life as to constitute a breach of BOR 2.  For the same reason, it found there are no substantial grounds for believing that he will be in danger of being subjected to torture, if returned to the Philippines.  Accordingly, it dismissed the Applicant’s appeal.

The legal principles applicable to judicial review

12.  The function of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[5].

Grounds for judicial review

13.  The Applicant did not put forward any grounds of application for judicial review in his Form 86.  In his supporting affirmation, he annexed a copy of the Decision, but advanced no grounds for review.  His leave application is just a challenge of the Board’s finding of fact that he had failed to prove that he would face real harm or real risk of harm if returned to the Philippines.  For reasons as explained in the above paragraph, this is not permissible in an application for judicial review.  In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. 

Discussion

14.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, this  Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement claims; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  The Board assessed the Applicant’s claim wholly on the basis of his case as he asserted.  The Applicant could have no complaint against such finding of fact.  It was on that basis that the Board found that there is no real risk of the Applicant being harmed if he should return to the Philippines.  Accordingly, the Board came to the conclusion that the Applicant was not entitled to non-refoulement protection under any of the applicable grounds under the USM.  These are finding of facts and of law.  Insofar as it is a finding of fact, it is exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  Insofar as it is finding of the law, it is absolutely correct.  The Court could detect no error of law in the Decision.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge his burden of proving his fears and risks.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success. 

Conclusion

15.  For the above reasons, leave is granted to amend the leave application by naming the Board’s Decision dated 20 June 2019 as the decision in respect of which relief is sought; but the leave application as amended 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