Amazen Alfred Dawaayen v Torture Claims Appeal Board HCAL 889/2017, [2018] HKCFI 702: leave to judicial review rejected for non-refoulment claim of gay man

​Summarised by Tsang Zi Kan (Associate)

Executive Summary

General evidence of adversity faced by gay people in the location to be refouled to is on itself insufficient to establish the applicant will personally face a real risk of ill-treatment for his sexual identity upon return. The long time passed since the last abuse, the lack of consistent pattern of abuse, and improvements of the local situation on LGBT support are relevant to indicate a small risk of personal harm upon return. 

Facts

The applicant, a 36-year-old gay Filipino, arrived in Hong Kong with permission to remain as visitor on 22 October 2014 until 5 November 2014, but overstayed until 18 August 2016.  While being detained by the Immigration Department for suspended sentence for the offence of breaching the condition of stay, he raised his non-refoulement claim on the ground that his family members and the Bago tribe would harm or kill him for being gay if he is refouled to the Philippines.

Incidents of ill-treatment to the applicant for his sexual identity

In his teens, he was frequently teased by his brother and schoolmates for his feminine behaviour. Most of his neighbours were of the Bago tribe which was said to be homophobic. 

One day in 1996, when he admitted to being gay at his father’s demand, his father hit him in front of the family and hang him upside down for half an hour with a warning that he would kill him if he did not change. 

One day in 2011 or 2012, he and his gay friends were teased and thrown at for being gay by others on the street in Manila. He was not injured but became fearful for his safety, and came to Hong Kong in 2014. 

Decision of the Director of Immigration (“The Director”)

The Director rejected his claim on all grounds: 

(i) ​risk of torture under Part VIIC of the Immigration Ordinance, Cap 115;

(ii) risk of absolute and non-derogable rights under the Hong Kong Bill of Rights Ordinance (“HKBOR”), Cap 383 including right to life under Article 2, risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3; and

(iii) risk of persecution referencing the non- refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees.

The Director decided that there is low future risk of harm to him upon his return to the Philippines for the following reasons:

(i) the past ill-treatment from the applicant’s family and the Bago tribe were of low intensity and low frequency;

(ii) findings based on objective Country of Origin Information (“COI”) showed that reforms are on-going in the Philippines in providing support to LGBT people; and

(iii) it is not unduly harsh or unreasonable for the applicant to relocate to other parts of the Philippines, since he is an able-bodied adult.

Decision of the Torture Claims Appeal Board (“the Board”)

​The applicant’s appeal to the Board was dismissed for the following reasons, confirming the Director’s decision that there is no real or substantial risk to the applicant to return to the Philippines:

(i) his fears are not well-founded since the incidents arising from the applicant being gay were all isolated incidents with no consistent patterns of threats or harms; and 

(ii) there is no evidence to suggest the Bago tribe people intended to cause any harm to him. 

Issue

On 15 November 2017 the applicant applied for leave for judicial review of the decision of the Director and the Board, on the following grounds: 

(i) failure to find he as a gay man would face great risk of being rejected, humiliated and harmed in the Philippines; 

(ii) failure to properly consider COI to support such risks to the applicant if he is to return; 

(iii) failure to properly assess from the COI whether reforms by the Philippines government are effective in protecting gay people there; and 

(iv) wrongly focus on the risk of physical harms instead of assessing psychological harms to him as a gay man there.

Held

Leave to apply for judicial review was refused. 

General evidence of adversity faced by gay people in the Philippines itself is insufficient to establish the applicant will face a real risk of ill-treatment upon his return. He must show he himself will be personally at risk. The Board’s decision was based on precedents in the United Kingdom, the European Court of Human Rights and Hong Kong’s Court of Appeal. 

The court’s ruling echoed that of the Director and the Board. There was no regular pattern of abuse by his brother or father while living together 20 years ago. Now, his father had already passed away and nothing suggests his brother and the Bago tribe neighbours would still hold the same attitude. It is also unlikely he will return to live in his home town since both his mother and sister have already moved. The applicant could not even establish he is at risk of facing ill-treatment, physically or mentally, at a minimum level. Thus he would not fall within the scope of Article 3 of HKBOR. 

The court ruled that the Director and the Board already properly considered the relevant COI in objectively assessing the alternatives of internal relocation. Relevant considerations include the members of the applicant’s family and the Bago tribe are not state agents, the tribe people constitutes only a relatively small population in the Philippines, and there are recent improvements for protection of gay people there.

It is suggested that when deciding non-refoulment claims of LGBT people on grounds including torture, courts should consider more thoroughly the social stigma LGBT people face, and their psychological fears from past ill-treatment incidents, despite  a lack of consistency in the events. This would extend more protection to the potentially vulnerable group especially when the locality is still developing in terms of LGBT awareness and support. 

Comments

It is suggested that when deciding non-refoulment claims of LGBT people on grounds including torture, courts should consider more thoroughly the social stigma LGBT people face, and their psychological fears from past ill-treatment incidents, despite  a lack of consistency in the events. This would extend more protection to the potentially vulnerable group especially when the locality is still developing in terms of LGBT awareness and support. ​

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