ARELLANO ARIEL GONZAGA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1361/2019

[2024] HKCFI 1077

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1361 of 2019

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:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 10 May 2019 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 did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, his application is dealt with on the papers.

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 is a national of the Philippines.  He entered Hong Kong on 1 November 2016 as a visitor and he overstayed.  He surrendered to the Immigration Department on 6 December 2016 and raised a non-refoulement claim on 16 December 2016 on the basis that if he returned to his country, he would be harmed or killed by a commander (Commander Alvin) and his associates of the New People’s Army (“NPA”) due to his abandonment of the NPA.

5.  According to the applicant, he joined the NPA since 1986 but he grew tired of the group.  He surrendered to the Philippine military in around January or February 2016 and provided all his documents and weapons to the Philippine military.  When Commander Alvin was aware of this, he attempted to kill the applicant in around May 2016 whilst he was on his way home.  He was shot in the face but manage to escape.  He did not require hospitalization and was able to recover by using simple medication. Thereafter, he was informed that a squad of NPA members were searching for him to kill him.  In fear for his life, he made arrangements to flee to Hong Kong.  Details of his claim are set out at [6] of the Notice of Decision 10 July 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

6.  The Director considered the applicant’s claim in relation to the following risks:

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

b.  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”);

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 way of the Director’s Decision, the Director dismissed the applicant’s claim.  In elaboration, the Director found that: (i) the perceived harm or ill-treatment from Commander Alvin and the NPA against the applicant was not imminent and substantial, as the incidents were indication of taking revenge on him and not necessarily to seriously harm him [12.1]; (ii) there was no supporting evidence that the entire NPA is chasing after him [12.2]; (iii) the availability of state protection, such as the Philippine government taking active steps to crack down the NPA based on credible COI, further lowered or negated the level of risk [13]; and (iv) internal relocation was also available and reasonable [14]. 

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board.  On 30 January 2019, the Board conducted an oral hearing for his appeal, during which he elected to give evidence.

9.  In essence, the Board was willing to accept that the applicant was involved with the NPA in the late 1980s to early 1990s but did not accept anything beyond [52].  In other words, the Board rejected the applicant’s claim that the NPA were still pursuing him or that Commander Alvin ever shot at him. [52].  The Board tested the veracity of his claim extensively spanning nearly 10 pages in its decision [28] – [53] and it found several inconsistencies and adverse findings, such as: (i) the unavailability of documents to support that he formally surrendered to the Philippine military; when the Board requested these documents, his explanation kept changing during the hearing [41]; and (ii) his account of events regarding the shooting incident with Commander Alvin was vague, changing and inconsistent; eg he could not explain how it was possible he recognized it was Commander Alvin despite wearing a motorcycle helmet; or his own whereabouts after the shooting incident [43] – [45].

10.  In assessing the individual grounds, the Board found, on the basis that it had rejected the factual matrices of the applicant’s claim, he would not be in danger of being subject to torture [60] under Torture risk or BOR 3 risk [66].  On the same basis, the Board found his risk of harm under BOR 2 risk and Persecution risk to be unsubstantiated [69] and [73].

11.  For the above reasons, the Board held the applicant was not entitled to non-refoulement protection under any of the applicable grounds and dismissed his appeal.

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

12.  The applicant has filed Form 86 dated 21 May 2019 for leave to apply for judicial review of the Board’s Decision.

13.  In the applicant’s affidavit in support of his application, the applicant enclosed it with the hearing bundle without raising any specific ground.

DISCUSSION

14.  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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

16.  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.”

17.  The Board, for the reason set out in paragraph 9 above, rejected his evidence on the facts of his claim and had found that there was no evidence to show that the applicant will be subject to the risks as claimed if he returns to his country. There is no valid ground from the applicant to challenge the Board’s Decision. There is no reason for the Court to interfere with the Board’s Decision.

18.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

19.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision.  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