RAMALES JULIO FIGUEROA v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 2224/2018

[2020] HKCFI 2580

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2224 of 2018

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 refused.

Observations for the Applicant:

1.  The Applicant is a 53-year-old national of the Philippines who arrived in Hong Kong on 23 June 2004 with permission to remain as a visitor up to 7 July 2004 when he did not depart and instead overstayed, and surrendered to the police on 13 May 2009. After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to the Philippines he would be harmed or killed by 3 men for having witnessed them committing a murder, and after his torture claim was rejected, he then sought non-refoulement protection on the same basis. He was subsequently being released on recognizance pending the determination of his claim. 

2.  The Applicant was born and raised in Tarlac, the Philippines. After leaving school he worked as a messenger, got married and moved to live in Village Pembo, Makati, Manila.

3.  One day in April 2004 while he and a friend were in the village, 3 masked men on motorcycles stopped in front of them and shot dead his friend, and before they fled they warned the Applicant not to interfere.

4.  The Applicant was scared and left the scene before the police arrived, and upon informing his wife at home, he was advised to leave town to save his life, and so he fled to Camiling in Tarlac Province and then to Cagayan Valley Region, but as he still felt it was not safe in the Philippines, he therefore departed in June 2004 for Hong Kong where he overstayed and subsequently raised his torture claim, and after it was rejected, he then sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 23 May 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 19 June 2017 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including risk of his absolute and non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) 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 assessed the level of risk of harm from those unknown men upon his return to the Philippines as low due to the absence of any past ill-treatment from them, that there is no evidence of any real intention on their part to harm or kill the Applicant, that it is doubtful after all these years that they would still have any adverse interest in him, 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 103 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 area away from his home district in large cities such as Davao City where it would be difficult if not impossible for those unknown men to locate him.

7.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 23 August 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 2 October 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board accepted the Applicant’s evidence that he may have witnessed a murder but doubted that those unknown men would have any adverse interest in him after all these years as they were masked and therefore the Applicant could not possibly have been able to identify them even if he were to go to the police after all these years upon his return to the Philippines, and in the absence of any evidence that those men had ever been looking for him in the Philippines that it concluded of no real risk of him being harmed or killed by them upon his return to the Philippines that his claim for non-refoulement protection failed on all applicable grounds.

9.  On 12 October 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)  Procedural unfairness in failing to provide legal representation for his appeal to the Board;

(2)  That the Director wrongly determined his claim and which the Board also failed to properly address this issue;

(3)  That the Board’s decision was not read or translated to him so that he could have a better understanding of his case;

(4)  That the Director and the Board wrongly exercised their case management power by putting too much weight on the COI which did not reflect the true situation in the Philippines;

(5)  That the Director quoted various COI which supported his allegations regarding state protection but used them against his claim by claiming that the situation has improved in the Philippines without any explanation as to how the balancing exercise worked and what tests did the Director apply in concluding that the particular sections of COI outweigh the others;

(6)  That the Director merely adopted a formula and biased approach in assessing his claim including using certain COI to both support his assertion of the overall corruption of the Philippines including the ineffectiveness of its police but at the same time to use the same COI to show that positive reforms have been on-going in respect of the police in the country;

(7)  That the hearing bundle served on him for his appeal without reading or translating the documents to him of which he cannot read or understand.   

10.  For his complaint under Ground (1) of not being provided legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 367, and Re Zafar Muazam [2018] HKCA 176.

11.  The Applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation in his appeal hearing before the Board and to answer questions put to him by the Adjudicator without difficulty. I do not find anything amiss arising from the lack of legal representation in his appeal process, and I do not think this ground is reasonably arguable.

12.  As for his complaints under the other grounds, they appear to me just bare and vague assertions of the Applicant without any particulars or specifics or elaborations as to how they apply to his claim, while (4) to (6) are clearly not relevant to his case when he never sought assistance from the local police prior to his departure from the Philippines.

13.  As for his remaining complaint under (7) of being served with the hearing bundle only shortly before his appeal hearing before the Board, and that the documents in the bundle which were all in English had never been read or translated to him that he would not even know what they were other than his own signature, I note that the Applicant has been living in Hong Kong since 2004 and should be able to read some English other than his own signature, and that his supporting affirmation in his present application now before me is in English and was affirmed by him without interpretation. 

14.  Furthermore, most of those documents such as his own SCF and the Director’s decision must be well familiar to him by then as they had been provided to him earlier while he was still legally represented by DLS, and that he never raised any such issues during his entire appeal hearing before the Board, and in the absence of anything to demonstrate that the basis of his claim has indeed been wrongly interpreted or understood by the Board, I do not find anything amiss arising from the hearing bundle for the Applicant in his appeal before the Board.

15.  As such and in the absence of any error of law or procedural unfairness in his process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, I do not find any of these grounds reasonably arguable or any reasonably arguable basis for his intended challenge.        

16.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasion for an 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 risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and 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 properly and clearly identified by the Applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see 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.

17.  In the Applicant’s case, the fact is that it has been established by the Director in his decision that the risk of harm in his claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of the Philippines, a decision also confirmed by the Board, 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 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