TABINGAN JULIUS KIDAO v. TORTURE CLAIMS APPEAL BOARD

HCAL 1506/2021

[2024] HKCFI 1085

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1506 OF 2021

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 be refused.

Observations for the Applicant:

1.  The Applicant is a 35-year-old national of the Philippines who arrived in Hong Kong on 9 January 2020 as a visitor with permission to remain as such up to 23 January 2020 when he did not depart and instead overstayed, and was arrested by police some 9 months later on 27 October 2020.  After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim for protection on the basis that if he returned to the Philippines he would be harmed or killed by his mother’s cousin over some property dispute within the family in his home district.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Camp 4, Tuba, Benquet, the Philippines.  After leaving school he worked as a salesman in his home district, and continued to live with his parents in his mother’s house which she inherited from her parents together with the surrounding farmland, but which was coveted by his mother’s cousin Rebecca who was one of the councilors of his home village.

3.  In 2000 while the Applicant was just a teenager and that his father was in prison due to some criminal offence, Rebecca took the opportunity to come to the Applicant’s home with some unknown men to attack the Applicant, his mother and siblings to try to drive them out of the house but was unsuccessful when the neighbours came to their rescue.

4.  Thereafter Rebecca would send men to make threats against the Applicant’s family almost every day, and eventually in 2002 the Applicant’s mother succumbed to the threats and moved the family out of the property and to another town in La Trinidad and then to Bugias, and later she learnt that Rebecca had taken over possession of the property and sent men to farm on the land.

5.  In 2018 the Applicant’s father died of a heart attack shortly after his release from prison, and in October 2018 his mother together with the Applicant and his siblings returned to his home village to bury his father, but when they tried to confront Rebecca over their family property, Rebecca became furious and threatened to have them killed by her men, whereupon the Applicant and his family became concerned for their safety and therefore left and returned to Bugias.

6.  About 2 months later in January 2019 one day while in neighbouring town of Villasis where he worked, the Applicant was approached by an unknown man on the street, and when he saw the men pulling out a gun the Applicant immediately ran away and escaped without harm, but as he later suspected that the man was sent by Rebecca to kill him, he felt it was no longer safe to remain in the Philippines, and so on 9 January 2020 he departed for Hong Kong where he subsequently overstayed, and after his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 25 January 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

7.  By a Notice of Decision dated 27 April 2021 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 foreseeable risk of him being harmed or killed by his mother’s cousin Rebecca upon his return to the Philippines due to the low intensity and frequency of past ill-treatment from her, that there is no evidence of any real intention or purpose of Rebecca to seriously harm or kill him over some property dispute within the family when the Applicant is not even the legal owner of the property, that in any event it was a private property dispute within their family without 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 109 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.

9.  On 10 May 2021 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 September 2021 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 21 October 2021 his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from his mother’s cousin Rebecca over some property dispute within the family that caused him to leave his home country to come to Hong Kong to seek protection, that his credibility was further undermined by his failure to raise his claim upon first arriving in Hong Kong until some 9 months later and only after his arrest by the police, that even if his claimed property dispute with Rebecca were true that there was no reliable evidence of any real intention or reason of Rebecca to harm or kill him when her dispute was with his family and that he does not even have any legal interest in the subject property and as she had in fact already taken possession of the property, and that in any event it was a private property dispute within their family without any official involvement that state or police protection would be available to the Applicant upon his return to the Philippines 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 1 November 2021 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 to which he just attached a copy of the decision but without putting forth any proper ground for his intended challenge, nor was he able to do so at the hearing of 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 also been correctly established by both the Director and the Board in their respective decisions that the risk of harm in his claim even 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, and accordingly I refuse to grant leave and 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