BOTEROS ESTRELIETA ABONG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 826/2020

[2025] HKCFI 3457

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 826 of 2020

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;

1.  The Applicant’s Form 86 be amended to (a) name the TCAB as putative respondent, and (b) to name the DI as putative interested party; and

2.  The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  By a Form 86 filed on 6 May 2020 (“Form 86”), the Applicant sought leave for judicial review of the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“TCAB”) made on 8 April 2020 (“the TCAB Decision”). A copy of the TCAB Decision can be viewed by the following hyperlink[1].

2.  The TCAB Decision was made pursuant to a petition/appeal from a decision of the Director of Immigration (“DI”) dated 8 January 2020. The Applicant named both the TCAB and the DI as putative respondents. I amended the Form 86 on my own motion to name the TCAB as the putative respondent and the DI instead as the putative interested party to this application.

3.  The Applicant has failed to identify any alleged errors of law, irrationality or procedural unfairness on the part of the TCAB in reaching the TCAB Decision to make good her challenge, either in the Form 86 or the supporting affirmation.

4.  The Applicant is a Philippines national. Her non-refoulement claim was based on an alleged risk of being ill-treated or killed by a creditor named Stephen Villanueva (“Stephen”) for an unsettled loan. Her petition/appeal was dismissed by the TCAB after an oral hearing.

5.  In the oral hearing of this leave application, the Applicant sought to adduce two pages of new documents not available to the TCAB in support of her case. The first page was an “Order” apparently issued by a Filipino Judge dated 20 March 2025 on the revival of a criminal case against the Applicant. The second page was apparently a warrant of arrest against the Applicant for violation of Batas Pambansa Bilang 22 (“B.P. BLG.22”) dated 30 June 2017. The two pages will be collectively referred to as the “Filipino Court Documents”. The Applicant stated that she received the Filipino Court Documents from a friend in March 2025.

6.  Answering the Court’s enquiry as to the nature of the criminal case revived, the Applicant answered B.P. BLG.22 is the Filipino legal provision criminalizing the act of issuing a dishonoured cheque. The Applicant said she gave a cheque to Stephen, which was bounced back (dishonoured), and Stephen used this fact to charge her in the Filipino court. The Applicant said she did not state in her non-refoulement claim form or any statement submitted to the DI/TCAB the assertion that she gave Stephen a cheque which was subsequently dishonoured. The Court reserved the decision on the admissibility of the new evidence.

7.  As pointed out by the Court of Appeal in Dr. Kwok Hay Kwong v The Medical Council of Hong Kong [2007] HKCU 962; [2007] 3 HKLRD 213 at 219, the conditions in Ladd v Marshall [1954] 1 WLR 1489 on the admission of fresh evidence on appeal are equally applicable to judicial review. The three criteria to justify reception of fresh evidence are that (a) the evidence could not have been obtained with reasonable diligence for use at the hearing; (b) the evidence was such that it would probably have an important influence on the result of the case; and (c) the evidence must be apparently credible, though it need not be incontrovertible.

8.  In KV (Sri Lanka) v Secretary of State for the Home Department [2018] EWCA Civ 2483, the English Court of Appeal confirmed the above criteria in asylum cases and commented that in public law cases these principles remain the starting point, and there is a discretion to depart from them in exceptional circumstances if the wider interests of justice so require.

9.  The Filipino Court Documents do not have any important influence on the result of the case. The Applicant claimed that she borrowed money from Stephen in 2012; she left the Philippines and work in Hong Kong as a domestic helper around the same time. Taking to the highest, the document only shows Stephen tried to enforce a loan against the Applicant and make use of the Filipino legal system to achieve the purpose. It does not show whether the Applicant would be subject to risks of torture, persecution or violation of human rights if she returns to the Philippines.

10.  I also do not find the Court Documents credible on their face. The existence of a cheque to repay Stephen, not to mention whether it was bounced back or not, was not mentioned to the DI/TCAB in the non-refoulement claim process handled by them.

11.  I have reviewed the TCAB Decision vigorously. In my judgment, the TCAB Decision was supported by sound factual findings and the TCAB had conducted an anxious scrutiny of the available evidence and information. The TCAB did not regard any of the Applicant’s factual claim to have owed money to a debt collector in the Philippines credible. The TCAB found that the Applicant had failed to provide any details of the terms of the alleged loan or the amount of the repayments she had made. She also offered no explanations to the TCAB on the inconsistencies of events that were the important aspects of her claim or the alleged Stephen’s connections with the Government. It was on such basis the TCAB found the Applicant not establishing any substantial grounds that she would face a real risk of ill-treatment, torture, persecution or violation of fundamental rights if she returns to her home country. I am unable to detect any error on the TCAB’s part in this regard.

12.  It has been reiterated time and again that the primary responsibility for the factual assessment of whether any risk of ill-treatment exists lies with the TCAB. In the absence of any errors of law, procedural unfairness or irrationality, the Court would not reopen the TCAB’s findings or make a determination on the case afresh. The role of the Court in a judicial review is not to provide a further avenue of appeal (see Re Lakhwinder Singh [2018] HKCA 246).

13.  The leave application to apply for judicial review is thus dismissed.

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