PRADO MOISES ESTONILO v. TORTURE CLAIMS APPEAL BOARD

HCAL 608/2020

[2025] HKCFI 3834

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 608 OF 2020

  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”, “Director of Immigration” be added as the putative interested party and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 12 March 2020”. 

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 14 April 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of “THE DECISION OF THE DIRECTOR OF IMMIGRATION MAY 20, 2019”.

2.  However, both the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) did not make any decision regarding the applicant’s application for non-refoulement protection in Hong Kong on 20 May 2019. The said date was in fact the date of the Board’s hearing regarding the applicant’s appeal against the Director’s decision dated 21 August 2018 (“the Director’s Decision”), which rejected the applicant’s non-refoulement claim.

3.  The Board actually made its decision on 12 March 2020 (“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/2020/HCAL000608_2020_files/the_Board's_Decision.pdf

4.  The Board found that the applicant was not entitled to non-refoulement protection on any of the applicable grounds including BOR 2 Risk[1], BOR 3 Risk[2] and Persecution Risk[3] under the Unified Screening Mechanism (“the USM”). The Board thus denied the applicant’s claim for non-refoulement protection, denied his petition against the Director’s Decision and confirmed the Director’s Decision.

5.  The applicant had previously lodged a torture claim in March 2007. The Director rejected his torture claim on 22 November 2011 (“the Director’s Previous Decision”). The applicant’s appeal against the Director’s Previous Decision was rejected on 29 November 2011. Thus, the applicant’s Torture Risk[4] had been assessed and finally determined, and it was not necessary for the Board to deal with it again in the Board’s Decision.

6.  As the Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549), it is clear that the decision in respect of which relief is sought should just be the Board’s Decision. This court will consider the Leave Application in respect of the Board’s Decision only.

Amendments

7.  The applicant named “TO THE IMMIGRATION DEPARTMENT THE ADJUSTICATOR OF NON-REFOULMENT CLAIM PETITION” as the putative respondent and did not name any putative interested party in Form 86, when only the Board should be named as the putative respondent and the Director should be named as the putative interested party.

8.  Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board”, and “Director of Immigration” is added as the putative interested party.

9.  As mentioned, the decision in respect of which relief is sought in the Leave Application should be the Board’s Decision. Hence, it is so amended on this court’s own motion.

The applicant’s case

10.  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.

11.  In sum, the applicant claimed for non-refoulement protection because he feared that if returned to the Philippines, he would be harmed or killed by members of the New People’s Army (“NPA”) which was targeting him for his counterterrorism role while he was a soldier with the Armed Forces of the Philippines (“AFP”) from 1976-1988.

Grounds for judicial review

12.  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).

13.  The applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 14 April 2020. The applicant merely stated in his supporting affirmation that he was seeking a reversal of the decisions of the Director as well as the Board.

14.  As aforesaid, only the Board’s Decision is reviewable by judicial process and not the Director’s Decision. This court will only consider the Leave Application in respect of the Board’s Decision.

Discussion

15.  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).

16.  Thus, the applicant cannot ask this court to re-assess the facts of his case including his alleged danger in the Philippines, but this court will examine and scrutinize the Board’s decision for any errors of law, procedural unfairness and irregularities.

17.  The applicant was afforded an oral hearing before the Board on 20 May 2019 and the applicant was present. Thus, the applicant did have a chance to present his case to the Board in person. However, the Board found that there were some internal inconsistency in the applicant’s testimony and discrepancies in the broader body of evidence.

18.  More significantly, the applicant’s evidence could not establish that NPA rebels specifically targeted him apart from the last “attack”, and in that incident the only evidence to show that he was specifically targeted was based on hearsay and the event itself was implausible.

19.  In addition, the Board found the applicant’s allegation that he was at risk of harm or loss of life by NPA rebels speculative and implausible. The Board made that finding based on the current strength and objectives of the NPA, the passage of 31 years since the applicant was a soldier for AFP and 28-29 years since he experienced the most recent of the alleged attacks, and the fact that AFP soldiers did not engage in close physical combat with NPA rebels.

20.  Thus, the applicant had not proven that there was a real risk he would suffer ill-treatment or loss of life by NPA rebels should he return to the Philippines.

21.  As held by the Court of Final Appeal in Ubamaka Edward Wilson v Secretary for Security and Another (2012) 15 HKCFAR 743, the risk of the applicant should be assessed at the time of the proceedings, taking account of information that has come to light to ensure that it is able to make a “full and up-to-date assessment” of the current situation. Thus, the Board was correct in making its assessment based on the applicant’s current situation.

22.  The Board noted from country of origin information (“COI”) that NPA was a very small group relative to the size of the Philippine population and that it was designated a terrorist organization. As such, NPA faced the full force of the Philippine government, AFP and the Philippine National Police (“PNP”). Though noting that PNP could be corrupt and that state protection was far from perfect in the Philippines, there was evidence that efforts to professionalize PNP were continuing, and PNP was making efforts to prosecute offenders within its ranks. The Board thus considered that some state protection was available which, had the Board found the applicant was at risk on being refouled – which it had not – would reduce the level of risk to him.

23.  With regards to internal relocation, the Board found that there was a very high likelihood that such risk, if any, would be very significantly reduced if the applicant relocated to another area of the country, other than the north east part of Luzon Island where there was a possibility some people might know he was formerly a soldier for AFP. The Board noted that the applicant, being 64 years old at the time of its Decision, would receive a healthy pension from the government of the Philippines with which he could re-establish himself in another location and it would almost entirely negate the perceived risk.

24.  The assessment of evidence, COI materials and risk of harm was primarily within the realm of the Board. The applicant’s alleged danger had been duly assessed and denied by the Board. The Board was entitled to come to its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its decision.

25.  For the sake of completeness, this court noticed that the adjudicator, Mr Hugh Sutherland McCALL, signed the Board’s Decision as “Adjudicator of the Non-refoulement Claims Petition Office” instead of “Member of the Torture Claims Appeal Board”. This is not a correct description of his capacity, as he was not making the determination on behalf of the Non-refoulement Claims Petition Office. The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the members of the Board and does not have the capacity to determine non-refoulement claims itself.

26.  Under the USM, the Chief Executive has delegated his powers under Article 48(13) of the Basic Law to members of the Board to hear and determine petitions in relation to claims made on all applicable grounds other than Torture Risk (see paragraph 3.7 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme). Thus, only the members of the Board have the powers to hear and determine the applicant’s petition.

27.  Nevertheless, the wrong description of his capacity does not nullify the Board’s Decision, as Mr McCALL was indeed a member of the Board and did have the power to determine the applicant’s petition.

28.  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 errors 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.

29.  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

30.  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