COSTA, JOR-ELL DELA TORRE v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3213/2019

[2025] HKCFI 2839

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 3213 OF 2019

_____________

BETWEEN

_____________

_______________

J U D G M E N T

_______________

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 15 October 2019 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below.

2.  The applicant asked for a hearing. However, he was absent at the hearing on 30 May 2025. I shall deal with his application on the papers.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.  The applicant is a national of the Philippines. On 13 December 2015, he last arrived in Hong Kong on the strength of his passport but he did not depart and overstayed since 28 December 2015. On 4 January 2017, he surrendered to the Immigration Department and in due course, he lodged a non-refoulement claim in Hong Kong.

5.  The applicant’s claim was based on his fear of being harmed or killed by five unknown people (“Enemies”).

6.  According to the applicant, he did not join any political party or labour union but was threatened by the Enemies in October 2016 and his wife told the applicant that the two neighbours were killed by the Enemies. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 6 April 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

7.  The Director considered the applicant’s claim in relation to the following risks:

(a) risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(b) risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

(c) risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

(d) risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

8.  By way of the Director’s Decision, the Director assessed the applicant’s claim and dismissed his claim. In summary, the Director found that: the claimed level of risk of being harmed or killed was assessed to be low, the low intensity of past ill-treatment is indicative of the unlikelihood for a future risk of harm, and the problem was based on hearsay [13]; state protection was available [14-18]; and internal relocation alternatives were available and reasonable [19].

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board. On 13 February 2019, the Board conducted an oral hearing for his appeal, during which the Board found that the applicant had an excellent command of English and could respond directly to some questions in English [45].

10.  Having considered the evidence, the Board did not accept that the applicant faced a real risk that his life would be in danger or that he would suffer ill-treatment if he relocates away from Quezon City [55]. Although the Board was not persuaded that the authorities would have the resources or the ability to protect the applicant [66], in any event, it found that it was not unduly harsh for the applicant to relocate to another area [68-69]. In conclusion, the Board held the applicant’s claim failed under all applicable grounds. It therefore dismissed his appeal and confirmed the Director’s Decision. [hyperlink to Board’s Decision, if available]

Application for leave to apply for judicial review of the Board’s Decision

11.  The applicant has filed Form 86 dated 29 October 2019 for leave to apply for judicial review of the Board’s Decision.

12.  In his affirmation in support of his application, the applicant deposed that the Director disregarded his statement about his situation but did not provide any particulars or details to his bare assertion.

DISCUSSION

13.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

15.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

16.  The applicant has raised no valid ground to challenge the Board’s findings.

17.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

18.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.