BRIGILDO NIEL BIDREJO v. TORTURE CLAIMS APPEAL BOARD

HCAL 1461/2018

[2020] HKCFI 2054

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1461 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 last arrived in Hong Kong on 31 January 2014 under a different name when he was refused entry and was subsequently arrested for making a false representation to an immigration officer for which he was later convicted and sentenced to prison.  Upon his release from prison, he was referred to the Immigration Department for investigation when he raised a non-refoulement claim on the basis that if he returned to the Philippines he would be harmed or killed by various political and terrorist groups due to his past involvements in them.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Baliuag, Bulacan, the Philippines.  After leaving school he claimed to have joined various political and terrorist groups including political party Moro National Liberation Front (“MNLF”) and the Islamic terrorist groups of Abu Sayyaf and ISIS, as well as an undercover agent for the Philippines government as set out in details in paragraphs 30 and 33 of the decision of the Torture Claims Appeal Board (“the Board”) as noted below.

3.  Later when he decided to leave those groups, he was pursued by them who had sent men to try to kill him, he therefore departed on 12 January 2013 for Hong Kong to work as a foreign domestic helper, but when his employment contract was terminated on 1 October 2013 after he was arrested by police in relation to a blackmail case, he departed Hong Kong to return to the Philippines on 10 October 2013.

4.  However, on 31 January 2014 he tried to enter Hong Kong again under a different name, and when he was refused entry and was arrested for making false representation to an immigration officer for which he was subsequently convicted and sentenced to prison, and upon his release from prison he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 24 November 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.  By a Notice of Decision dated 18 December 2017 the Director of Immigration (“the 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”).

6.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found such serious inconsistencies, discrepancies and conflicts in his evidence of his claims of involvements in and threats from all those political and terrorists groups or the Philippines government that they were considered as implausible and incredible, that the credibility of his claims was further undermined by his behaviors in Hong Kong and his failure to raise his claim until his discharge from prison over his said criminal offence, that in any event with state or police protection available to reduce or negate such risk of harm if true upon his return to the Philippines that his claim for non-refoulement protection in Hong Kong failed on all applicable grounds.

7.  On 2 January 2018 the Applicant lodged an appeal to the Board against the Director’s decision, and for which he attended an oral hearing on 29 May 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 18 July 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board found such inconsistencies and discrepancies in the Applicant’s evidence that it did not accept that he was ever a member of any of those political or terrorist groups mentioned by him or that he had ever worked as any undercover agent for the government and rejected all his such claims, nor did it accept that he would face any appreciable risk of harm from any of those groups or persons mentioned by him or by the government upon his return to the Philippines that his claim for non-refoulement protection in Hong Kong failed on all applicable grounds.    

9.  On 25 July 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)   that the adjudicator had acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

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

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

(5)   that the Board had significantly relied on the source of news which was not officially recognized or was simply hearsay or outdated which resulted in the Board making groundless speculations that it would be safe for him to return to his home country; and

(6)   that the hearing bundle was provided to him only a few days before his appeal hearing with the majority of the documents in English that there was insufficient time for him to prepare for the hearing due to his limited English and being unrepresented that he was unable to find any reasonably cheap interpreter to assist him for his appeal.  

10.  These are however all just broad and vague assertions of the Applicant containing several pages of 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 Board unlawfully fetter its discretion or act in a procedurally unfair or unreasonable manner, or how did the adjudicator fail to take into account of relevant Country of Origin Information (“COI”) or being selective or improperly rely on irrelevant COI, or what source of news relied on by the Board were not officially recognized or were hearsay or outdated.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, nor did he attend the scheduled hearing of his application.  As such I do not find any of them reasonably arguable for his intended challenge.

11.  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.

12.  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.

13.  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 interviews 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, whilst his NCF was completed on his own instructions with legal assistance, and that at his oral hearing he never raised any issue or requested the adjudicator for further time to enable him to better prepare for his appeal.  Accordingly I do not find anything amiss arising from the hearing bundle for the Applicant in his appeal before the Board.

14.  Essentially the Board rejected the Applicant’s claim on its adverse finding of his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 114 – 133 of 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 with sufficient detailed and elaborations, I do not find any reasonably arguable basis to challenge the finding of the Board.        

15.  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.

16.  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