CRISTOBAL CHRISTOPHER SANA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2117/2019

[2024] HKCFI 2550

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2117 OF 2019

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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to apply for judicial review of the Director’s Decision dated 29 October 2018 (“the Director’s Decision”), which was superseded by the Decision dated 19 May 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision (“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, I shall deal with his application on paper.

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, the Director of Immigration is the interested party and the Decision in respect of which relief is sought is the Board’s Decision.

The applicant  

4.  The applicant is a national of the Philippines.  He married his wife in Hong Kong on 7 June 2013.  Their sons were born in Hong Kong in March 2014 and January 2014 respectively.  He applied for a dependant visa in September 2014, but his application was refused in January 2016.  His last arrival in Hong Kong was on 18 December 2017 as a visitor.  He overstayed since 2 January 2018.  He surrendered to the Immigration Department.  A Removal Order was issued against him on 5 June 2018.  He lodged his claim for non-refoulement by written representations dated 2 May 2018 and 9 June 2019 respectively on the basis that, upon refoulement, he will be harmed or killed by his Village Captain, Mr Wilson Peret (“the Village Captain”)

5.  According to the applicant, in December 2017, he had a dispute with the Village Captain’s son, Alvin because of a parking dispute.  Alvin assaulted him on his face.  He reported the matter to police.  Police arrested Alvin and found dangerous drug from Alvin.  Alvin was put into jail.  The Village Captain was angry and threatened to kill him.  In order to avoid the Village Captain, he left the Philippines for Hong Kong.  Details of his story are set out in paragraph 7 of 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 as there was no substantial grounds for believing that there will be any real risk of harm to him upon his return to the Philippines [12]-[14].  The Director further found that state protection would be available to him [15]-[17] and internal relocation was viable [18]-[19].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board.  On 13 March 2019, the Board conducted an oral hearing for his appeal, during which he gave evidence.

9.  Having considered his evidence, the Board found:

“53. In the premises, I am not persuaded that the Appellant is in fear of being harmed or killed by the village captain if he is refouled to the Philippines.

55. I find that the Appellant has built up his case which stemmed from a trivial parking matter in order to fortify his protection claim.”

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

10.  The applicant has filed Form 86 dated 24 July 2019 for leave to apply for judicial review of the Board’s Decision.

11.  In his affirmation in support of his application, the applicant says he does not want to return to his country because his life will be in danger and he wants to stay with his children.  He has raised no specific ground to challenge the Board’s Decision.

DISCUSSION

12.  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).

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

14.  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.”

15.  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.

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

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

DISPOSITION

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