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| The High Court declined to review the Board's finding that the applicant lied in his application |
A Filipino
asylum seeker who was found to have concocted an elaborate tale about a land
dispute in his family failed to get the High Court to allow him to appeal the
decision of the Immigration Director and the Torture Claims Adjudication Board
rejecting his claim against being sent back home.
In the judgment
handed down earlier today, the High Court ruled that there was no reason for it to interfere with the Board’s finding of facts, which included various lies
that the applicant, Ariel A. Palacio, had told to support his case.
There was also
no reasonable ground for success in his bid for a judicial review.
Palacio, 58,
filed a torture claim in August 2013, after overstaying his tourist visa by two
months.
He said in his
application to the Immigration Department that if refouled or sent back, he
would be harmed or killed by his “Uncle TaTa,” who was an adopted child of his paternal
grandparents, and his children due to a land dispute.
This Uncle TaTa
reportedly tried to contest the ownership of a parcel of land bequeathed to
Palacio’s father and hs siblings, but lost the case. When his father died
in 2008, Palacio said Uncle TaTa sent him threatening text messages, thinking that
he was keeping the title to the disputed land.
Palacio said he
flew to Manila to escape the threats but heard that after Uncle TaTa died
in 2017, his children began making trouble for his aunts and uncles, and he
felt it would be unsafe for him to return to his hometown.
He said he could
not rely on local government authorities to protect him because Uncle Tata had
relatives working in the city hall and the local police. He could not relocate
to another place in the Philippines because of a lack of funds.
He therefore
came to Hong Kong as a visitor in March 2009 and overstayed his visa until June
11 that year. The next month he filed a torture claim but it was rejected on Aug 6, 2013. 2009. On Aug 30, 2013 he made another non-refoulement on all applicable grounds other than torture
risk .
Immigration thus
considered his application on the grounds of violation to right to life and
risk of torture or cruel, inhuman or degrading treatment under the Bill of
Rights, and risk of persecution under the Refugee Convention.
In its decision,
the Director said there was an absence, or a low intensity of frequency of past
ill treatment of the applicant by Uncle TaTa and his children; and that state
protection will be available to him if he went back home.
On review, the
TCAB found more serious grounds to deny Palacio’s application. The Board said
that while there was indeed a land dispute, it involved the applicant’s
grandfather and his siblings. The Boad also found that Uncle Tata was a brother
of the applicant’s great grandfather who died in 1942.
“It was therefore
against the laws of nature that Uncle Tata would still be alive in 2008, i.e.
75 years after the death of the applicant’s great grandfather,” said the Board.
It also
discovered from documents that Palacio’s father was still paying tax in 2013,
contrary to his claim that his father died in 2008.
In denying the
claim, the Board found that “ the applicant (i) never had an Uncle Tata and no
cousins born to an Uncle Tata; (ii) never been harassed or threatened in
relation to a land dispute; and (iii) not of any adverse interest to any
relatives who was upset about not receiving a share of land.”
Besides this,
the Board upheld the Director’s finding that Palacio would be safe if he went
back to the Philippines.
Despite this,
Palacio sought leave to appeal the Board’s decision, saying it relied on mere
hearsay in coming up with it decision. He also claimed that he was not served
the hearing papers on time, depriving him of the chance to file submissions.
In reply, the High
Court reiterated that its role is merely supervisory, meaning that it should
only ensure that the Board had complied with the public law requirements in
coming to its decision.
“The Court will
not usurp the fact finding power vested in the Director and the Board,” said
the court.
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