EVANGELISTA WILLIAM JR AGANON v. TORTURE CLAIMS APPEAL BOARD

HCAL 2677/2019

[2025] HKCFI 2112

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2677 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 oral submissions by the Applicant in open court;

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 46-year-old national of the Philippines who last arrived in Hong Kong on 24 February 2016 as a visitor with permission to remain as such up to 9 March 2016 when he did not depart and instead overstayed, and on 22 March 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 certain local wealthy and influential man running for election as major for having witnessed him attacking a member of his rival candidate. The Applicant was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Anao, Tarlac, the Philippines. After leaving school he worked as a farmer, construction worker and a tricycle driver to make his living, got married and raised a family with 3 children in his home district.

3.  In 2010 he was appointed a leader of an organization to provide community services and security to his home district to include watching out for illegal activities and to report them to the Mayor and the police, in particularly those of a local wealthy businessman Bob Marquez who was then running an election campaign to be the next mayor but was suspected to be involved in illegal activities including drugs trafficking.

4.  One evening in December 2015 while driving his tricycle in a neighboring town Cuyapo, the Applicant saw Bob Marquez together with his men attacking the election campaign manager of a rival candidate with baseball bats that the victim was left lying on the ground covered with blood and appeared to be dead.

5.  However, when Bob Marquez and his men saw the Applicant, they shouted threats at him and started running after him, whereupon the Applicant immediately drove his tricycle away from the scene to return to his home district in Anao, Tarlac.

6.  Later at night some armed men came to the Applicant’s home looking for him, and when they could not find him, they threatened his family that they would hunt him down and kill him.

7.  As a result the Applicant became fearful for his life and fled from his home to hide in his sister’s place, and on 30 January 2016 he departed the Philippines for Hong Kong during which he also took trips to other places, and on his last trip to Hong Kong on 24 February 2016, he overstayed and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 29 August 2018 and attended screening interview before the Immigration Department with legal representation.

8.  By a Notice of Decision dated 28 September 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”).

9.  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 Bob Marquez and his followers 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 reliable evidence of any real intention of Bob Marquez to seriously harm or kill him other than to warn him not to report their crime to the police, 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, 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 Davao or Cebu City where it would be difficult if not impossible for anyone to locate him.

10.  On 18 October 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 10 June 2019 with his lawyer before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board and with submission made on his behalf by his lawyer. On 27 August 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

11.  In its decision the Board accepted the Applicant’s claim of fear of harm from Bob Marquez and his men for having witnessed their crime but found no evidence of any official involvement that state or police protection would be available to the Applicant 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 Bob Marquez and his men that his claim for non-refoulement protection failed on all applicable grounds.

12.  On 13 September 2019 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)   That the Board reached the decision wrongly in assessing his non‑refoulement claim as the decision was not fair or reasonable as required by the Wednesbury test in failing to recognize that his life must be protected by the criminal law from extra-judicial killings that he may face if deported back to his home country;

(2)   That the Board failed to appreciate or place proper or sufficient weight or importance to the presence of State Acquiescence in his case which led to an unfair outcome of rejecting his claim;

(3)   That the Adjudicator acted unreasonable and was procedurally unfair by placing too much reliance on COI but failed to take into account the Applicant’s personal background and experience in assessing his claim;

(4)   That the Board had listed relevant COI which supported the Applicant’s aversions that the police in his country would not be able to protect but failed to consider or give sufficient weight to such evidence and instead ruled otherwise against the Applicant’s case which was a clear case of unfair attitude shown by the Board which in itself is enough to render its decision void;

(5)   That the Board failed to take into account the Applicant’s argument that corruption and incompetency of the administration in the Applicant’s country is still a very serious problem as various human rights organizations had compiled reports that stated testament to the Applicant’s assertions;

(6)   That the Board failed to attain the high standard of fairness required by the Wednesbury test in the decision with the arguments put forward by the Applicant that it should be considered unreasonable in the scope of public law.

13.  These are however all just bare and vague assertions of the Applicant containing a few key words or phrases but without any relevant or necessary 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 was the decision unfair or unreasonable or that the Adjudicator had acted 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, or what relevancy was state acquiescence to his case when on the factual basis of even his own case that it was a private dispute between him and Bob Marquez only without any official involvement or political element at all. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant in his Form or at the hearing of his application, I do not find any of them reasonably arguable for his intended challenge.

14.  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.

15.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in his claim 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.

16.  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.

17.  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