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HCAL 1863/2020
[2025] HKCFI 5474
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1863 of 2020
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Lalas Ednoray Villafania |
Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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and |
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Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge K.W. Lung:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
THE APPLICATION
1. The applicant applies for leave to apply for judicial review of the Decision dated 10 September 2020 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. He appeared before the Court at the hearing on 3 November 2025.
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. He is an illegal immigrant, having entered Hong Kong as a visitor, but overstayed. On 25 June 2019, he lodged a non-refoulement claim with the Director of Immigration (“the Director”) on the basis that, if refouled, he will be harmed or killed by his brother J because he knew that J was selling dangerous drug and he refused to give J money. On a number of occasions, J and his friends had attacked the applicant. The applicant reported to police, which took no action.
5. Details of his claim are set out in the Board’s Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001863_2020_files/the_Board's_Decision.pdf.
The Director’s Decision
6. 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”).
7. By way of Notice of Decision dated 27 December 2019 (“the Director’s Decision”), the Director dismissed the applicant’s claim because it was unsubstantiated.
The Board’s Decision
8. The applicant appealed the Director’s Decision to the Board. On 18 May 2020, the Board conducted an oral hearing for his appeal. He had given oral evidence and answered the Board’s questions.
9. Having considered the evidence, the Board made the findings below.
(1) The applicant’s evidence at the hearing was often vague and the Board had to re-ask him to provide the answers. [29]
(2) For reasons given [35]-[40], the Board considered the applicant had exaggerated the risk to him from brother J. [34]
(3) The Board did not consider the applicant faced a real risk of Proscribed Harm from brother J, brother J’s friends and/or Mr X if he was refouled to India. [42]
10. For the reasons above, the Board dismissed his appeal and affirmed the Director’s Decision.
Application for leave to apply for judicial review of the Board’s Decision
11. The applicant has filed Form 86 dated 18 September 2020 for leave to apply for judicial review of the Board’s Decision.
12. In his affirmation in support of his application, the applicant has raised the reasons below to challenge the Board’s Decision.
(1) Procedural impropriety: failing to consider BOR 2 risk; failing to have sufficient enquiry into the relevant country of origin conditions; having not given sufficient basis to support Board’s conclusion; and
(2) Error/misdirection in law: failing to take into account psychological strain and threats to the applicant.
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. Before me, the applicant said that he had submitted his full story to the Board for its consideration. He said that the Board was not wrong. Upon my enquiry on the reasons raised under paragraph 12, he said his friend prepared it for him. He did not understand it.
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. In view of the applicant’s submissions before the court, the reasons under paragraph 12 are insignificant for the court’s consideration.
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.
Dated the 19th day of November 2025
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Annson CHEUNG
for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 19/11/2025
Lalas Ednoray Villafania
Applicant’s ref. no:
Nil |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 19/11/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 16644/20/1/F1131
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 859/19 (formerly RBCZ 10642/19)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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