LANTAFE ANTONIO VILLARIASA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1746/2019

[2024] HKCFI 2376

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1746 OF 2019

________________________

________________________

________________________

J U D G M E N T

________________________

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 6 June 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, 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 and the Director of Immigration is the interested party.

The applicant

4.  The applicant, aged 60, is a Filipino.  He last arrived in Hong Kong as a visitor on 21 August 2010 and overstayed since 15 September 2010.  The applicant was arrested by the police on 9 November 2011.  He lodged a torture claim on 10 November 2011, which was rejected on 8 February 2012.  His subsequent appeal was also dismissed on 23 March 2012.  On 9 November 2015 and 13 November 2015, the applicant made a further non-refoulement claim on all applicable grounds other than Torture risk[1]. The claim was made on the basis that, if refouled, he would be harmed or killed by his ex-girlfriend, his ex-girlfriend’s brother and aunt because he refused to marry his ex-girlfriend.  The applicant also feared harm from the New People’s Army (“NPA”)  because his ex-girlfriend’s brother was closely associated with them.

5.  According to the applicant, he first met his ex-girlfriend in 1999.  In July 2009, the applicant rejected his ex-girlfriend’s marriage proposal because he considered himself financially incapable of maintaining a family.  His ex-girlfriend later told him that her brother was furious when he learnt about the applicant’s refusal to marry her and had threatened to kill him.  Thereafter, the applicant moved between his home and his cousin’s home to avoid any direct confrontation with his

6.  In August 2010, when the applicant met his ex-girlfriend’s brother, he shook his right hand hard and elbowed him in his ribs.  The applicant was so frightened that he left the Philippines for Hong Kong in order to avoid his ex-girlfriend’s brother for good.  While in Hong Kong, the applicant learnt from his cousin that his ex-girlfriend’s aunt had asked for his whereabouts several times prior to July 2016 and he felt that she might harm him.

7.  The applicant feared that reporting the matter to the police would provoke his ex-girlfriend’s brother and that the police would not be able to provide round the clock protection to him anyway.  He also considered internal relocation not viable because he believed that his

8.  Details of the story of the applicant can be found in paragraph 9 of the Director’s Decision dated 16 July 2018 (“the Director’s Decision”).

The Director’s Decision

9.  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”); and

(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”).

10.  By way of the Director’s Decision, the Director dismissed the applicant’s claims.  The Director found that: (i)  the absence or low intensity and frequency of past ill-treatment received by the applicant indicated a small future risk of harm upon his return to the Philippines [22]-[28]; (ii)  there was no evidence showing that the applicant was being pursued everywhere in the Philippines [29]; (iii)  the applicant’s delay in seeking protection was inconsistent with the behaviour of someone genuinely in fear [30]; (iv)  state protection would be available to him [32]-[38]; (v)  internal relocation would be viable [39]-[46] and (vi)  the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [47]-[53] or Persecution risk [54]-[59].

The Board’s Decision

11.  The applicant appealed the Director’s Decision to the Board.  On 28 February 2019, the Board conducted an oral hearing.  

12.  During the hearing, the applicant told the Board that he used to visit his ex-girlfriend once or twice a year.  Between the meetings, he used to write to her more than once or twice a year although he could not remember exactly how often [47].  The applicant also told the Board that his ex-girlfriend was still at school while implying that she was already 33 when they first met in 1999 [50].

13.  The Board considered that the applicant was not a witness of truth.  The account of his remote relationship with his ex-girlfriend was implausible and his claim that she was still at school despite her age further undermined his credibility [55].  The Board also found there was no credible evidence showing that the applicant was threatened by his ex-girlfriend’s brother or that he was targeted by NPA [56]-[57].

14.  Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Persecution risk or BOR 2 and BOR 3 risk [16]-[21], [58]-[62].  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 on 24 June 2019 for leave to apply for judicial review of the Board’s Decision.

16.  In his affidavit in support of his application, the applicant did not raise any specific reason 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.

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.  For the reasons given above, the Board rejected the applicant’s evidence. The applicant has raised no valid reason to challenge the Board’s Decision.  There is simply no reason for this Court to interfere with the Board’s finding of the facts.

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

DISPOSITION

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