SEBIANO DONDIE VALDEZ v. TORTURE CLAIMS APPEAL BOARD

HCAL 1578/2019

[2024] HKCFI 1187

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1578 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 / the Applicant being absent in open court;

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 34-year-old national of the Philippines who arrived in Hong Kong on 28 October 2017 as a visitor with permission to remain as such up to 11 November 2017 when he did not depart and instead overstayed, and more than 7 months later on 25 June 2018 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 some drug gangsters for having witnessed their murder of his friend. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Baguio City, the Philippines. After leaving school he worked in various jobs and continued to reside with his parents in his home district.

3.  One of his neighbours EL was his good friend with whom he often hang out together without knowing that EL was involved in drug dealings for some local drug syndicate.

4.  One day in October 2016 while they were on their way home, EL was ambushed and attacked by 2 men with knives but the Applicant managed to flee from the scene and ran home.

5.  On the following day he learnt that EL had been killed by those 2 men who were said to be drug gangsters and that EL was killed due to their dispute over drug money, and so the Applicant became fearful for his own safety but was too frightened to go to the police for help.

6.  Soon thereafter he started to receiving threatening calls and messages on his cell phone from unknown men warning him not to go to the police, and after several incidents when he was attacked on the street by unknown men whom he suspected were sent by the gangsters who murdered EL to give him warnings, the Applicant fled from his home to hide in his cousin’s place in Benguet and then to a friend’s place in Mabalacat, and on 28 October 2017 he departed the Philippines for Hong Kong where he overstayed and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 27 November 2018 and attended screening interview before the Immigration Department with legal representation.

7.  By a Notice of Decision dated 31 December 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”).

8.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real and substantial risk of him being harmed or killed by those gangsters upon his return to the Philippines due to the low intensity and frequency of past ill-treatment from them or any evidence of any real intention of them to seriously harm or kill him other than to deter him from going to the police given the fact that they had had ample time and opportunity to kill him for almost one whole year but did not do so before he left the country, 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 Cebu City where it would be difficult if not impossible for those gangsters to locate him.

9.  On 9 January 2019 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 15 April 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 3 June 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision the Board accepted the Applicant’s claim of having witnessed the murder of his friend by drug gangsters 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 if resorted to 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 that his claim for non-refoulement protection failed on all applicable grounds.

11.  On 10 June 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for relief was given in his Form or his supporting affirmation of the same date in which he just repeated his claim as before but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application. As such and in the absence of any error of law or irrationality 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 for his intended challenge.

12.  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.

13.  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.

14.  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.

15.  For 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 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