MAGALLANES FERNAN BATARINO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2190/2019

[2024] HKCFI 3219

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2190 OF 2019

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BETWEEN

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J U D G M E N T

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 28 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 askec for a hearing. However, he was absent at the hearing on 28 October 2024. 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 35, is a Filipino. He last arrived in Hong Kong as a visitor on 12 September 2014 and overstayed since 27 September 2014. The applicant was arrested by the police on 16 December 2014 and he made a non-refoulement claim on 18 December 2014. The claim was made on the basis that, if refouled, he would be harmed or even killed by the ex-mayor Mr Neptali Salcedo (“Neptali”).

5.  According to the applicant, he was the captain of a basketball team in his locality. During the mayor election in early 2009, he solicited vote for the opponent of Neptali. It turned out that Neptali lost the election and he put the blame on the applicant. One day in about mid-2010, the applicant learnt from his friend that Neptali intended to intercept him (“the intended intercept incident”). Out of fear, he relocated away from his hometown. Eventually, the applicant left the Philippines for Hong Kong in September 2014.

6.  The applicant maintained contact with his friend while in Hong Kong and was informed that Neptali was still after him. He was of the view that he could not seek protection from the police because Neptali was very powerful and influential as an ex-mayor. He also considered internal relocation not viable because Neptali was still looking for him.

7.  Details of the story of the applicant can be found in paragraph 9 of the Director’s Decision dated 24 December 2018 (“the Director’s Decision”).

The Director’s Decision

8.  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”);

(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”); and

(d) risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”).

9.  By way of the Director’s Decision, the Director dismissed the applicant’s claims on Torture risk, Persecution risk, BOR 2 and BOR 3 risk. The Director found that: (i) the absence of past ill-treatment from Neptali indicated that he had no real intention to seriously harm or kill the applicant [15.1]; (ii) the applicant’s claimed fear of harm from Neptali was merely his speculation as there was no indication that he was a prominent person that could affect the outcome of the mayor election [15.2]; (iii) there was no evidence showing that Neptali had the means to locate the applicant anywhere within the Philippines [15.3]; (iv) part of the applicant’s claims were based on hearsay [15.4]; (v) state protection would be available [16] and (vi) internal relocation would be viable [17].

The Board’s Decision

10.  The applicant appealed the Director’s Decision to the Board. On 8 May 2019, the Board conducted an oral hearing.

11.  The Board found the applicant’s purported fear from Neptali was without basis given that he had never been threatened or physically harmed [49]. It was also unbelievable that the applicant did not seek help from Neptali’s opponent, whom he assisted and won the mayor election [50]-[51]. Furthermore, the intended intercept incident was merely hearsay information from his friend and the claimed circumstances were also absurd [54]-[57]. Even if the intended intercept incident did happen, the Board considered that the applicant’s reaction went out of proportion [61].

12.  Based on such findings, the Board rejected the applicant’s claim on Torture risk, Persecution risk, BOR 2 and BOR 3 risk [12]-[20], [88]-[103]. In any event, state protection and internal relocation would be available according to the country of origin information [66]-[86].

13.  The applicant’s appeal was therefore dismissed and the Director’s Decision was confirmed.

Application for leave to apply for judicial review of the Board’s Decision

14.  The applicant has filed Form 86 dated 1 August 2019 for leave to apply for judicial review of the Board’s Decision.

15.  In his affirmation in support of his application, the applicant did not raise any specific ground to challenge the Board’s Decision.

DISCUSSION

16.  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).

17.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

18.  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.”

19.  The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded. There is no valid ground from the applicant to challenge the Board’s Decision.

20.  There is no reason that the Court should 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.