DANGBIS CEPHLER KINGAY v. TORTURE CLAIMS APPEAL BOARD

HCAL 1766/2019

[2024] HKCFI 1727

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1766 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 the Applicant being absent in open court;

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 45-year-old national of the Philippines who arrived in Hong Kong on 22 August 2016 as a visitor with permission to remain as such up to 5 September 2016 when he did not depart and instead overstayed, and 21 September 2016 he surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if he returned to the Philippines he would be harmed or killed by his former employer for refusing to work in his employer’s drugs trafficking business and/or by the police or authorities for being involved in such drugs trafficking business. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Loacan, Itogon, Benquet, the Philippines. After leaving school he worked as a salesman in his home district to make his living.

3.  In 2014 he started to work for a local wealthy businessman by the name of Lopez as one of his body guards. One day in April 2016 he was asked by Lopez to handle his illegal drugs trafficking business, and when the Applicant refused and expressed his wish to resign from his job, Lopez became furious and ordered his subordinates to beat the Applicant by punching and kicking all over his body before finally allowing him to leave the premises, whereupon the Applicant was admitted into a local hospital for medical treatments.

4.  Upon his discharge from the hospital and return to his home for recuperation, one day in May 2016 several of Lopez’s men came to take the Applicant to meet Lopez in his den when Lopez again insisted the Applicant to handle his drugs trafficking business, and when the Applicant again refused, Lopez pulled out a pistol and threatened to shoot him, and then told his men to lock him inside a room.

5.  In the same evening the police arrived to raid the place for illegal drugs, but Lopez and his men put up their resistance and exchanged gun shots with the police, during which the Applicant was able to escape from the scene and ran home.

6.  On the following day the Applicant heard that several of Lopez’s men had been killed by the police who also confiscated all the drugs and money found in that place, but Lopez managed to make his escape from the police and disappeared.

7.  Several days later the Applicant ran into Lopez in the town market who blamed him for his losses and demanded that he should compensate him by dealing drugs for him, and when the Applicant again refused, Lopez then threatened that he would have him killed by his men.

8.  As a result the Applicant became fearful for his life and went into hiding from Lopez, and as he also feared that he might be incriminated in Lopez’s illegal activities that he would be harmed or killed by the police, he therefore departed the Philippines on 23 June 2016 for Hong Kong where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 21 July 2018 and attended screening interview before the Immigration Department with legal representation.

9.  By a Notice of Decision dated 28 August 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of 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 of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from Lopez and his men or the police upon his return to the Philippines as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of Lopez to seriously harm or kill him or any adverse interest of the police in him given the absence of any arrest or charges made by them against the Applicant who was also able to leave the country without any problem, that in any event in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to from any harm from Lopez, 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 104 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 working experience to move to other areas of the country away from his home district in large cities such as Manila where it would be difficult if not impossible for Lopez to locate him.

11.  On 10 September 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 8 March 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 21 June 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

12.  In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from Lopez and his men or the police that caused him to leave his country to come to Hong Kong to seek protection, that there was no reliable evidence of any real intention of Lopez to seriously harm or kill him or of any adverse interest of the police in the Applicant given that he was able to leave the Philippines without any problem, and that in any event even if any claimed risk of harm from Lopez or his men were real that they were regarded as criminals by the police that state or police protection would be available to the Applicant from their harm upon his return to the Philippines as well as reasonable internal relocation alternatives for him to move safely to other parts of the country away from his home district without any risk of being located by Lopez that his claim for non-refoulement protection failed on all applicable grounds.

13.  On 26 June 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)  Procedural impropriety in failing to properly apply para 2 of the UN Committee Against Torture Comment No. 2 whereby satisfaction of a national state obligations to conduct sufficient due diligence requires that reforms and means of relief introduced must be effective in any event of the Board focusing on whether such reliefs showed merely signs of positive improvement;

(2)  Procedural impropriety in failing to conduct sufficient inquiry into the relevant COI;

(3)  Procedural impropriety/irrationality in failing to give reasons for assessment of lack of BOR 3 risk and/or sufficient basis to support conclusion of lack of BOR 3 risk;

(4)  Error/misdirection in law in failing to take into account the considerations of psychological strain and threats to the Applicant personally or threats to kill him directly;

(5)  Procedural impropriety in failing to consider the Applicant’s fear that he would face real risk against his life upon refoulement; and

(6)  That there was no sufficient basis for the Board to conclude that the Applicant would not be at risk of being subjected to torture and/or CIDTP upon refoulement.

14.  These are however all just some bare and vague assertions of the Applicant containing a few key words or phrases but without any necessary or relevant particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way did the Board fail to conduct sufficient inquiry into the relevant COI or assessment of his claim or to fail to give reasons for its determination, or how did the Adjudicator act procedurally unfair or irrational, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, nor did he attend the hearing of his application without any explanation. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for his intended challenge.

15.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the 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.

16.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility of his claimed fear of harm from Lopez for the thorough and detailed analysis and reasoning set out in paragraphs of 51 – 96 its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

17.  Furthermore, the fact is that it has also been established by both the Director and the Board in their respective decisions that the risk of harm in his claim from Lopez even if real 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.

18.  In the premises, and having considered 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.

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