OLCHINO JERWIN PAGNAS v. TORTURE CLAIMS APPEAL BOARD

HCAL 822/2021

[2026] HKCFI 2615

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 822 OF 2021

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 38-year-old national of the Philippines who arrived in Hong Kong on 3 May 2019 as a visitor with permission to remain as such up to 29 May 2019 as extended when he did not depart and instead overstayed, and on 23 January 2020 he surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if he returned to the Philippines he would be harmed or killed for having witnessed a murder committed by the body guards of the mayor of his home town. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in La Trinidad, Benguet Province, the Philippines. After leaving school he worked in the mine to make his living, cohabited with his girlfriend and raised a family with 2 children in his home district.

3.  In 2018 he started working for a mining company in Mangga Tuding which is near his parents’ home in Ampucao and where he would stay during weekdays and would return to his family in Benguet on weekends.

4.  On day in April 2019 after work and when he was on his way to the parking lot to fetch his motorcycle to go home, he saw 3 men whom he recognized as the body guards of the town mayor getting off a truck and dumping a dead body into the river. The Applicant was in shock and immediately drove his motorcycle away, but his face was seen by those men who shouted at him.

5.  Upon returning to his home in Benguet, he received a phone call from his father that some men had come to his parents’ home in Ampucao looking for him, of which the Applicant suspected that those murderers were looking to kill and silence him for having witnessed the murder, and so he fled to Tublay to hide in his uncle’s place, and when he later heard that the murder victim had subsequently been recovered and identified as a former business partner of the mayor.     

6.  Suspecting that the mayor was involved in the murder, the Applicant became fearful that he would be easily located and so he fled to Manila, and on 3 May 2019 he departed the Philippines for Hong Kong where he overstayed and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 10 June 2020 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

7.  By a Notice of Decision dated 21 September 2020 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 he will face any real and personal risk from his perceived enemies upon his return to the Philippines due to the absence of any past ill-treatment from them other than his bare assertions that those murderers were looking for him, that there is no evidence of any real involvement of the town mayor or of any attempts by the mayor to go after him, that in any event in the absence of 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 298,000 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 29 September 2020 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 22 April 2021 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 26 May 2021 his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision[1] the Board accepted the Applicant’s claim of having witnessed a murder committed in his home country but found no reliable evidence of any real pursuit of him by those allegedly involved in the murder, and that in any event in the absence of any official involvement that state or police protection would be available to the Applicant upon his return to the Philippines in particularly when he would be regarded as a witness to a crime, and that reasonable internal relocation alternatives would also be available for him to move safely to other parts of the country away from his home district without any risk of being located by anyone that his claim for non-refoulement protection failed on all applicable grounds.    

11.  On 4 June 2021 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking 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, or 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 of the Board’s decision.

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 Board rejected his claim for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law 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 to challenge the finding of the Board.

14.  Furthermore, the fact is that it has also been established by both the Director and the Board in their respective decisions that the risk of harm in his claim 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.                

15.  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.

16.  As I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I refuse to grant leave and accordingly dismiss his 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