DEJUMO MARK MICHAEL REJUSO v. TORTURE CLAIMS APPEAL BOARD

HCAL 304/2019

[2023] HKCFI 3204

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNO 304 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 the Applicant being absent in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 41-year-old national of the Philippines who last arrived in Hong Kong on 3 September 2016 as a visitor with permission to remain as such up to 17 September 2016 when he did not depart and instead overstayed, and on 19 September 2016 he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to the Philippines he would face the risk of extra-judicial killing due to the country-wide anti-drug campaign of then President Duterte as the Applicant was a drug addict. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in San Jacinto, the Philippines, and resided in Mataas na Kahoy Batangas. After leaving school he worked as a hair stylist in his home district to make his living.

3.  In 2007/2008 he became addicted to the use of drugs but only for his own consumption, and in early 2016 he was informed by a friend who was a councilor of the Biscocho Barangay that his name had appeared in the police’s watch list.

4.  However, later in the same year after President Duterte was elected and started a country-wide anti-drug campaign that resulted in many drug dealers and traffickers being killed or murdered by the police and vigilante groups, and while the Applicant has since stopped taking drugs, he was still concerned about his safety due to his past drug addiction, and so he fled to Manila to make arrangement to leave the country, and on 20 August 2016 he departed the Philippines for Hong Kong, and after taking a short trip to Macau on 3 September 2016, he re-entered Hong Kong on the same day and subsequently overstayed, and on 19 September 2016 he surrendered to the Immigration Department and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 19 March 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

5.  By a Notice of Decision dated 24 April 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”).

6.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of him being harmed or killed by the police or vigilante groups for being a drug addict in the past upon his return to the Philippines as low due to the absence of any past ill-treatment from them, that there is no reliable evidence that he had in fact been placed in any police’s watch list given the fact that he was able to apply for his passport and subsequently left the country without any problem, that he was not a drug dealer or trafficker or had had any previous arrest record or any involvement in such activities targeted by the anti-drug campaign that it is not accepted that the police or authorities or vigilante groups would have any adverse interest in him or would still have any such interest all these years since he left the country, that 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 Manila where it would be difficult if not impossible for anyone to locate him.

7.  On 30 April 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 15 November 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 30 January 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision the Board was prepared to give the Applicant the benefit of doubt and accepted his claim of having been a drug user in the past despite never having mentioned any particular drug that he had used or that he could have suddenly stopped using drugs in 2016 without any effect but found no reliable evidence of him being ever in any police’s watch list or of any action ever taken against him and that he was able to obtain his passport and then left the country without any problem, that it is not accepted that the Filipino government or authorities would have or still have any adverse interest in him or that he would face any risk of being harmed or killed by anyone due to his alleged past use of drugs upon his return to the Philippines that it concluded that his claim for non-refoulement protection failed on all applicable grounds.    

9.  On 1 February 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date to which he just attached a copy of the decision but without putting forward any proper ground for his intended challenge, nor did he attend the scheduled hearing of his application without any prior explanation. 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, and with judicial notice that Duterte is no longer the President of the Philippines upon completing his term in 2022.

10.  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: ReLakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst vDirector of Immigration [2018] HKCA 524.

11.  In the Applicant’s case, the Board rejected his claim for the through and detailed analysis and reasoning set out in paragraphs 32 – 51 of its decision and with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim during his appeal hearing, and in the absence of any error of law or judicial 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 to challenge the findings of the Board.                

12.  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.

13.  For the reasons given I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and accordingly I refuse to grant leave and 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