PANERGALIN CELSO ARTIPICIO v. MARY YUEN, ESQ., TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 397/2018

[2019] HKCFI 196

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 397 of 2018

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The applicant is a 37-year-old national of the Philippines who arrived in Hong Kong on 8 May 2011 with permission to remain as a visitor up to 22 May 2011 when he did not depart and instead overstayed until he was arrested by police on 12 June 2012.  After he was referred to the Immigration Department for investigation, he lodged a non-refoulement claim on the basis that if he returned to the Philippines he would be harmed or killed for having witnessed a murder.  He has since been released on recognizance pending the determination of his claim.

2.  The applicant was born and raised in Buenavista West Village, Candelaria, Quezon, the Philippines.  After leaving school he worked as a farmer and got married.  In 2011 he changed his job to be a tricycle driver working on the roads between his home village and Candelaria.

3.  One day in November 2010 while he was waiting for passengers in Candelaria, he saw EC, the ex-village head of Buenavista West, being gunned down by a man who then escaped on a motorcycle driven by another man whom the applicant recognized from the same village.

4.  The applicant later learnt that EC had died from his gunshot wound in the hospital, but he did not make any report to the police as he was afraid of getting involved.  He did however disclose to EC’s family of what he saw but declined their pleas to go to the police.

5.  Then one day in December 2010 the applicant was informed by a fellow villager that EC’s murderer had heard that he witnessed the murder and warned that he and his family would be in trouble.  As the applicant became fearful for his life, he decided to leave the Philippines, and with the assistance of an agent he departed on 8 May 2011 for Hong Kong, and after overstaying in Hong Kong for more than one year and was subsequently arrested by police, he raised a non-refoulement claim for protection for which he completed a Non-refoulement Claim Form (“NCF”) on 9 January 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.  By a Notice of Decision dated 6 February 2015 the Director of Immigration (“the 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 torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights (“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”).

7.  In his decision the Director took into account all the relevant circumstances of the applicant’s claim and expressed doubt over his assertion of having witnessed the murder of EC in 2010 when reliable Country of Origin Information (“COI”) reveal that EC was actually murdered in 2006 and that the witness of the murder was reported to be someone else with a name different from the applicant’s, that even if it were true that the applicant did witness the murder, that the level of risk of harm from an unidentified gunman upon his return to the Philippines was assessed as low due to the absence of any past ill-treatment inflicted on the applicant or any independent or reliable evidence of any threats made against him other than some hearsay information from a fellow villager, that in any event state or police protection would be available to the applicant if resorted to, and that COI also show that reasonable internal relocation alternatives are available in the Philippines with a large population spread across a vast territory that it would not be unduly harsh for the applicant as an able-bodied adult with work experience to move to other part of the Philippines away from his home district in large cities such as Manila where it would be difficult if not impossible for him to be located.

8.  By a Notice of Further Decision dated 12 May 2017 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

9.  By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which he filed on 16 February 2015, and for which he attended an oral hearing on 30 October 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 7 March 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.  In its decision the Board found the applicant’s claim of having witnessed the murder of EC in 2010 as inherently incredible, as reliable COI show that the murder took place in 2006, a fact conceded by the applicant as correct at the hearing and that he put the blame of the mistake on being confused when he made his statement to the Immigration Department,of which the Board also found incredible that if he was indeed the witness to the murder in 2006 that he would have waited until five years later to flee his country in 2011 when nothing had happened to him or his family in between during all those years, and concluded that he did not leave the Philippines for Hong Kong for the reason as alleged in his claim, or that he was at any risk under any of the applicable grounds.

11.  On 12 March 2018 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

 (1) procedural impropriety/unfairness in the adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of his claim;

 (2) irrationality in the adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of his claim;

 (3) irrationality in the adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in the Philippines;

 (4) irrationality in the adjudicator’s failure to analyze and assess whether state protection exists in the Philippines and misdirected herself as to the extended meaning of state protection;

 (5) irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

 (6) procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the applicant;

 (7) procedural impropriety/unfairness in the adjudicator applying the incorrect standard of proof in her decision; and

 (8) procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the applicant resulting in unfair procedure.  

12.  These are however all very broad and vague assertions of the applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the adjudicator had erred in the decision, or in what way did the adjudicator fail to take into account relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case, or in what way was his legal representation from his assigned lawyer insufficient.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant, and I do not find any basis or merit in any of them.

13.  The only other complaint which the applicant appeared to have made with any elaboration was about the hearing bundle being provided to him only a few days before his appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given him insufficient time to prepare for his appeal.

14.  Even if it is true that the hearing bundle indeed came to him late as alleged, and the applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including his NCF, records of his screening interviews and the Director’s decisions should be well familiar to the applicant as they had earlier all been made available to him when he still had legal representation, whilst his NCF was completed on his own instructions with legal assistance, and that at his oral hearing he never raised any issue or requested the adjudicator for further time to enable him to better prepare for his appeal.  Accordingly I do not find anything amiss arising from the hearing bundle for the applicant in his appeal before the Board.

15.  As has been repeatedly emphasized by the Court of Appeal, evaluation of risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation 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 Re Litoun Mounsy [2018] HKCA 537.

16.  In the present case, the Board rejected the applicant’s claim based on its adverse finding on the applicant’s credibility, and having made rigorous examination and anxious scrutiny of the materials available before me, I am unable to find any reasonably arguable basis to challenge the findings of the Board.

17.  Furthermore, the fact that it has been established by the Director in his decision that the risk of harm in the applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of the Philippines, with which the Board agreed when it confirmed the Director’s decision, there is simply no justification to afford the applicant with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526. 

18.  In the premises 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