DUMAGSA MARCELO CALDERON v. TORTURE CLAIMS APPEAL BOARD

HCAL 1084/2018

[2019] HKCFI 2453

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1084 of 2018

 Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 35-year-old national of the Philippines who arrived in Hong Kong on 10 April 2012 with permission to work as a foreign domestic helper until his employment contract expired on 10 April 2014 or within two weeks of its early termination.  However, when his contract was prematurely terminated on 26 May 2012 he did not depart and instead overstayed until he was arrested by police on 11 December 2012.  After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to the Philippines he would be harmed or killed by some land mafia for resisting their claim over his father’s land and/or by his creditor for failing to repay his loan.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Barangay Manlilinao, Ormoc City, Leyte, the Philippines.  After leaving school he worked as a farmer on his father’s farmland in his home village, married his wife and raised a family with a son.

3.  One day in May 2009 while the Applicant and his father were working on their farmland, Jose, the leader of a local gang known to have used threats to forcibly occupy other villagers’ land, came to declare that he was the true owner of the farmland and demanded that they should leave the farmland to him, and when the Applicant and his father just ignored him, Jose then left without any incident.

4.  However, thereafter Jose and his men would almost every other week come to the Applicant’s home armed with weapons and threatened to kill him and his family if they still refused to give up their farmland to him.

5.  The Applicant did not report the threats to the police and instead he made his complaint to the village community committee, and afterwards Jose and his men stopped coming to his home and ceased making their demand for their land.

6.  However, one night in January 2010 while the Applicant and his brother were riding their motor cycles on the way home, some of Jose’s men fired a shot at the Applicant but missed him and instead hit his brother who subsequently died from the injury.

7.  After the police failed to take any action against Jose due to insufficient evidence,the Applicant was advised by his parents to leave the Philippines for his own safety, and so in February 2012 the Applicant borrowed 80,000 pesos from his neighbor Reynaldo repayable by four monthly instalments including interest so that he could apply to work as a foreign domestic helper in Hong Kong.

8.  On 10 April 2012 the Applicant arrived in Hong Kong to start his employment, but on 26 May 2012 when his employment contract was prematurely terminated, and when he was unable to find another employment, he was unable to make his repayments to Reynaldo who then threatened his father that he would kill the Applicant if and when he returned to the Philippines, and hence the Applicant overstayed in Hong Kong until he was subsequently arrested by police when he then raised his non-refoulement claim for protection, for which he later completed a Non-refoulement Claim Form (“NCF”) on 13 March 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

9.  By a Notice of Decision dated 3 June 2015 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (‘torture risk’), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights (“HKBOR”) (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

10.  In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from Jose or Reynaldo to the Applicant upon his return to the Philippines as low due to the low intensity and frequency of past ill-treatment from them, that his problems with them were private personal disputes without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in the Philippines with a large population of 107 million people spread across a vast territory of more than 300,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with work experience to move to other part of the Philippines away from his home district in large cities such as Manila where it would be difficult if not impossible for Jose or Reynaldo to locate him.

11.  By a Notice of Further Decision dated 20 September 2017 the Director again rejected the Applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

12.  By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 15 June 2015, and for which he attended an oral hearing on 11 November 2016 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 29 May 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

13.  In its decision the Board found the alleged threats to the Applicant arose from private and personal disputes that both state/police protection and reasonable internal relocation within the Philippines would be available to the Applicant to move safely to other areas away from his home district and from any risk of harm from his perceived enemies that his non-refoulement claim for protection failed on all applicable grounds.

14.  On 13 June 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

 (1) procedural unfairness in that the Board had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirement;

 (2) procedural unfairness in that the adjudicator acted in a procedurally unfair manner in dealing with his appeal;

 (3) procedural unfairness in that the Board’s decisions to refuse his appeal were unreasonable or irrational in the public law sense or are the result of procedural errors or unfairness;

 (4) procedural unfairness in that the Board failed to meet the greater care and duty owed to a self-represented claimant;

 (5) procedural unfairness in providing him with the hearing bundle only six days before the appeal hearing with the majority of the documents in English without translation thereby giving him insufficient time to prepare his appeal before the Board due to his limited skills in English and without the means to find an interpreter to assist him in his preparation; and

 (6) that the Board had significantly relied on source of news not officially recognized or are hearsay or outdated which resulted in groundless speculations by the Board that it would be safe for him to return to his country of origin.

15.  These are however mainly just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the adjudicator had erred in the decision,or in what way did the adjudicator unlawfully fetter its discretion or act in procedurally unfair manner, or which COI were unofficially recognized or were hearsay or outdated that led to groundless speculations by the Board.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and in the absence of which I do not find any basis or merits in them or that any of them reasonably arguable for his intended challenge.

16.  As has been repeatedly emphasized by the Court of Appeal, evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

17.  The only other complaint which the Applicant appeared to have made with any elaboration was about the hearing bundle being provided to him only a few days before his appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given him insufficient time to prepare for his appeal.

18.  Even if it is true that the hearing bundle indeed came to him late as alleged, and the Applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including his NCF, records of his screening interview and the Director’s decisions should be well familiar to the Applicant as they had earlier all been made available to him when he still had legal representation from DLS, whilst his NCF was completed on his own instructions with legal assistance,and that at his oral hearing he was assisted by an interpreter during which he never raised any issue with the hearing bundle or requested the adjudicator for further time to enable him to better prepare for his appeal.  As such I do not find anything amiss arising from the hearing bundle for the Applicant in his appeal before the Board.

19.  Furthermore, the fact that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of the Philippines,there is simply no justification to afford him with non-refoulement protection in Hong Kong:see TK v Jenkins & anor [2013] 1 HKC 526.

20.  In the premises and having proceeded to consider the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

21.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave 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