BENAVENTE RONALD YBANEZ v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3760/2019

[2025] HKCFI 1362

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3760 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

1.   Form 86 be amended on my own motion to name only the TCAB as the putative respondent and the DOI as an interested party; and

2.   Leave to apply for Judicial Review be dismissed.

Observation for the Applicant:

Introduction

1.  By a Form 86 filed on 17 December 2019 (the “Form 86”), the Applicant applied for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (the “TCAB”) “on my case”.  The Applicant named both the TCAB and the “Immigration Department” as the proposed respondents.

2.  From the papers filed for this application, there was a decision by the TCAB dated 5 December 2019 (the “TCAB Decision”), which affirmed the decision of the Director of Immigration (the “DOI”) dated 6 August 2018 (the “DOI Decision”) refusing the Applicant’s non-refoulement protection claim.

3.  I therefore amend the Form 86 on my own motion to name only the TCAB as the putative respondent and the DOI as a putative interested party.

4.  The Applicant did not ask for a hearing of this application and hence I proceeded to deal with it on paper.

Background

5.  The Applicant was born in and is a national of the Philippines.  He seeks non‑refoulement protection on the basis that he will be harmed or killed by unidentified men who murdered his friend if he is returned to the Philippines, for he had witnessed the murder.  His personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be assessed through a hyperlink[1], and I shall not repeat the same herein.

Discussion

6.  In a judicial review, this court does not provide a further avenue of appeal.  Though in non-refoulement case an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision‑makers.  This 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 TCAB (Nupur Mst v Director of Immigration [2018] HKCA 524, [14(1)]).  There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anr (2007) 10 HKCFAR 676).

7.  In his affidavit filed in support of the Form 86, the Applicant has not pointed to any such errors of law, procedural unfairness or irrationality of the TCAB Decision.  He has merely stated his factual case that he had witnessed a murder and the murderer had threatened him and his family. 

8.  In so far as the threat to his own life is concerned, this factual matter had been fully canvassed before the TCAB [6-11].  After careful analysis of the Applicant’s evidence, the TCAB did not accept that the Applicant would be at risk in the Philippines as alleged [44-60].

9.  The TCAB then proceeded to analyse each of the four applicable grounds under the USM, applying in each instance the correct legal principles [13-38] to the available evidence, and found that none of the grounds was established [61-72].  Further, the TCAB found that even if there was such a risk of harm or loss of life as alleged, the Applicant could still find relative safety in many other areas of the Philippines [74-75].

10.  I have not detected any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.

11.  As to the claim that his family would also be under threat of life if he were to be returned to the Philippines, this appeared for the first time in the Applicant’s affirmation in support of the Form 86. 

12.  Not only did the Applicant fail to raise this despite 2 opportunities to present his case before the DOI and the TCAB, given my view above on the analysis and conclusion of the TCAB in respect of the risk to his own life I in any event see no basis for this claim to be reasonably arguable, not to mention realistic prospect of success.

Conclusion

13.  For the above reasons, I am not satisfied that this court should intervene by way of judicial review.  I therefore dismiss the 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