PAMPAG REY PACCIAL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 156/2025, [2025] HKCA 794

On Appeal From [2025] HKCFI 754

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 156 OF 2025

(ON APPEAL FROM HCAL NO 2614 OF 2019)

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J U D G M E N T

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Hon Andrew Chan J (giving the Judgment of the Court):

1.  This is the Applicant’s appeal against the order of Deputy High Court Judge K W Lung (“the Judge”)  dated 18 March 2025 (“the Order”)  refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”)  dated 3 September 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 1 November 2018.

BACKGROUND

2.  The Applicant is a national of the Philippines.  He entered Hong Kong as a visitor on 30 January 2017, and had overstayed since 14 February 2017.  On 28 March 2017, he surrendered himself to the Immigration Department.  On 20 June 2017, he lodged a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by a former Mayor of his city named Jesry Palmares (“Palmares”)  and Palmares’s bodyguards because the Applicant was supposed to help Palmares in Palmares’ campaign for a mayoral election in 2012.  As he did not receive funds promised by Palmares, he switched to support another candidate who later defeated Palmares and won in that election[1]. Details of the Applicant’s claim have been summarised by the Judge at §§4 and 5 of his judgment dated 18 March 2025 (“the Judgment”). 

3.  By a Notice of Decision dated 1 November 2018 (“the Director’s Decision”), the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds: risk of torture[2], BOR 2 risk[3], BOR 3 risk[4], and persecution risk[5]. 

4.  The Applicant appealed the Director’s Decision to the Board.  On 3 September 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”).  The Board’s reasons for its decision were summarised by the Judge at §9 of his Judgment, as follows:

“Having considered the evidence, the Board found that the [Applicant] was not a credible witness and it did not accept that there was a real risk of harm against him if he was refouled; in particular, his evidence was not supported by the Country of origin information in relation to when the election were held, who were the candidates, and who won the election [70-72, 76-81, 89-90, 93-95, 103-105]. In conclusion, the Board held that the [Applicant’s] claim failed under all applicable grounds. It therefore dismissed his appeal and confirmed the Director’s Decision.”

THE JUDGMENT

5.  On 9 September 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.  No ground for seeking relief was given in the Form 86.  In his supporting affidavit of the same date, the Applicant merely asked for the permission to stay in Hong Kong because his life would be in danger in the Philippines.

6.  The Judge held a hearing of the leave application on 12 February 2025.  On 18 March 2025, the Judge gave his Judgment refusing to grant leave to apply for judicial review, for the following reasons:

“[12] 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…

[13] 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 the Board did not believe his evidence and he wanted the Court to review it.

…

[15] The Board, for the reasons given above, found that the [Applicant’s] evidence was incredible.

[16] There is no valid ground from the [Applicant] to challenge the Board’s Decision.

[17] There is no reason that the Court should interfere with the Board’s finding of the facts.

[18]  The [Applicant] fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.”

THIS APPEAL

7.  In his Notice of Appeal filed on 26 March 2025, the Applicant states that the finding(s)  regarding the situation in the Philippines constitutes an error of judgment and repeats his belief that if refouled, his life would be in danger there.

8.  The Applicant has failed to lodge any written submissions in support of his appeal contrary to the directions given by the Registrar of Civil Appeals on 24 June 2025.  Accordingly, he is deemed to have waived the right to have an oral hearing of his appeal and elected to have his appeal disposed of on paper.  Having considered the documents before us, we consider that it is appropriate to deal with the Applicant’s appeal on paper without an oral hearing.

DISCUSSION

9.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  The court’s role is not to examine the Board’s decision afresh as if it was a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524, at §14(6)).

10.  Further, the assessment of evidence, country of origin information, 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: Re Kartini [2019] HKCA 1022.  No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

11.  The Applicant has failed to identify or show any error in the Judgment refusing to grant leave to apply for judicial review, or raise any viable ground of appeal against the Order.

12.  The Applicant’s appeal has no merit, and is dismissed.