NOBLE ARCHIE OQUIAS v. TORTURE CLAIMS APPEAL BOARD

HCAL 1507/2021

[2026] HKCFI 3528

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1507 OF 2021

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the applicant or counsel in open court;

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the name of the putative interested party be amended to “Director of Immigration”.

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

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated and filed on 1 November 2021, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 7 September 2021 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL001507_2021_files/the_Board's_Decision.pdf

2.  The Board found that the applicant had failed to prove that he faced a real risk of harm if he were refouled to the Philippines. Thus, the Board denied his claim for non-refoulement protection on all the applicable grounds under the Unified Screening Mechanism (“the USM”), and confirmed the decision of the Director of Immigration (“the Director”) dated 31 July 2019, which rejected his non-refoulement claim.

Amendments

3.  In Form 86, the applicant named the Board and “Non-Refoulement Claims Petition office” as the putative respondents, and named himself as the putative interested party.

4.  In fact, only the Board should be the putative respondent, and the Director should be the putative interested party.

5.  The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a respondent at all.

6.  Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party to “Director of Immigration”.

The applicant’s case

7.  It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

8.  In sum, the applicant claimed for non-refoulement protection because if refouled to the Philippines, he feared that he would be harmed or killed by members of Abu Sayyaf and the New People’s Army (“NPA”) as he reported them to the police. Specifically, the applicant reported Abdul, whom the applicant described as very wealthy and powerful and a commander/ member of both Abu Sayyaf and NPA, and other men and caused them to be arrested and subsequently imprisoned. The applicant heard that Abdul and the others were looking for him and wanted to take revenge by killing him.

Disposal on paper

9.  The applicant did not request for an oral hearing of the Leave Application. This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court. Hence, the Leave Application is dealt with on paper.

Grounds for judicial review

10.  The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

11.  The applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affidavit dated 1 November 2021. He only mentioned in the said affidavit that he was “not contented to the result”.

Discussion

12.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness, or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

13.  Thus, despite the fact that the applicant did not advance any valid ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid.

14.  In assessing the appeal/petition by the applicant, the Board held an oral hearing on 12 May 2021. The applicant was present and was given the chance to present his case to the Board in person.

15.  As can be seen from the Board’s Decision, the Board gave full and detailed reasoning in rejecting the applicant’s claims. The analysis and findings of the Board in relation to the applicant’s claim were laid out in paragraphs 50 to 67 of the Board’s Decision, and it is not necessary for this court to repeat the same here.

16.  In gist, the Board found that much of the applicant’s evidence was hearsay, stretched credulity, and was emotive rather than logical. There was no direct evidence that he was harmed or threatened before he left the Philippines and all of his fears that Abdul would harm or kill him were based on hearsay. The applicant attributed truth to every alleged statement he heard from others about Abdul or Abdul’s intentions, without regard to how the person making the statement acquired the information, the identity of that person’s source, or any assessment as to the reliability of the source. There was no evidence of substance that the applicant was at risk of harm or loss of life by Abdul if he returned to the Philippines.

17.  Given the applicant’s heavy reliance on hearsay evidence and a significant number of improbable assertions, the Board found that the applicant had not proven his claim. The applicant had failed to discharge the burden on him to prove the centerpiece of his story, or that he was threatened and was at risk in the Philippines when he decided to travel to Hong Kong. The Board did not find the applicant’s story credible or believable.

18.  Thus, the Board concluded that the applicant’s appeal/petition and his claim for non-refoulement protection in Hong Kong failed on all the applicable grounds under the USM.

19.  The Board did not consider availability of state protection and viability of internal relocation. However, as the Board found the applicant did not face a real risk of torture, ill-treatment, arbitrary deprivation of life or persecution, it is not necessary for the Board to consider the availability of state protection.

20.  As to internal relocation, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that he qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997). In other words, internal relocation only arises if the applicant has established a real risk of persecution in his home area (see Gardi v SSHD [2002] 1 WLR 2755).

21.  As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it is not necessary for the Board to further consider internal relocation.

22.  The finding of facts, including the assessment of evidence and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

23.  Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no error of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.

24.  As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

25.  For reasons aforesaid, the Leave Application is 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