GANITANO RODENCIO GANOTECE v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2846/2019

[2025] HKCFI 2608

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2846 of 2019

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

Following:

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

The Leave Application be dismissed

Observations for the Applicant:

Introduction

1.  By prescribed Form 86 filed on 27 September 2019, the applicant applied for leave to apply for judicial review (“Leave Application”).  The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 30 August 2019 (“Board’s Decision”) dismissing the applicant's appeal against the decision of the Director of Immigration (“Director”) dated 14 December 2018.  (“Director’s Decision”) rejecting the applicant's non-refoulement claim.

2.  At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 10 June 2025. Before the hearing, a notice of hearing with a reminder[1] of the consequence of absence dated 12 May 2025 was sent to the applicant’s last known address by ordinary post.  The applicant did not turn up at the hearing.  Several phone calls were made to the applicant’s given telephone number before the hearing, but to no avail. The information before this court shows that the said notice of hearing has not been returned undelivered through the post.

3.  In the circumstances, this court will dispose of the Leave Application according to the materials already placed before the court.

Background

4.  The background as taken from the Director’s Decision and the Board’s Decision can be briefly stated as follows.

5.  The applicant is a national of the Philippines[2].  He came to Hong Kong as a domestic helper in 1992 until his employment contract with the same employer was terminated on 7 March 2012. He overstayed and was arrested on 28 January 2014.  On 30 January 2014, the applicant submitted his non-refoulement claim.

6.  The applicant’s claim was considered under all applicable grounds i.e. torture risk^[3], BOR 2 risk^[4], BOR 3 risk^[5] and persecution risk^[6] under the USM.^[7]  The claim was based on a fear that if refouled, he would be harmed or killed by his wife, due to his extramarital relationship.

7.  According to the applicant, he married another fellow Philippine domestic-helper in Hong Kong in 1996. Five children were born from this marriage. The oldest three children moved to the Philippines for schooling when they reached 6 years of age.

8.  In 2010, as a result of his extramarital relationship with another woman, his wife assaulted the applicant on his shoulder relentlessly out of anger. The applicant went to the hospital to have his wound dressed but did not report the matter to the Hong Kong police because he did not want his wife to be imprisoned.  Following this incident, his wife returned to Philippines with their two youngest children. Before leaving Hong Kong, she stated that she would mercilessly kill him if she found him in the Philippines.  Since then, the applicant has not returned to the Philippines.

9.  In March 2010, the applicant’s father told him that his wife returned to his home in the Philippines once, left the two children with him, and asked the applicant’s father to take care of them.  She then left the family home without leaving any contact information, but reiterated to his father that she would kill him when the applicant returned to the Philippines.  The applicant did not know his wife’s whereabouts since then.

10.  In the Director’s Decision, the Director decided against the applicant’s claim on all applicable grounds.  Hence, the applicant’s appeal to the Board against the Director’s Decision.

11.  On 24 July 2019, the applicant attended a hearing before the Board.  At the Board hearing, the applicant gave oral testimony and answered questions from the Board.

12.  The Board found that there was not a credible real risk that the applicant’s wife had an intention to harm him for reasons of his extra-marital affair “now or in the reasonably foreseeable future” if he were refouled. In an event, the Board found that the applicant had no direct threat from his wife for almost 9 years, and knew nothing of her circumstances.  The Board therefore concluded that the applicant did not face a real risk of harm from his wife, or from her family, or from anyone else associated with her should the applicant return to the Philippines.  The Board also found that state protection would be available and that internal relocation would be viable. The Board therefore dismissed the applicant’s appeal and confirmed the Director’s Decision.

Legal principles applicable to judicial review

13.  As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them.  A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error.  A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

Discussion and conclusion

14.  In his Form 86 and supporting affirmation, the applicant stated the following grounds for judicial review.

(a)  The Board’s Decision was unreasonable and unfair, while the right to life is protected under Article 28 of the Basic Law and Article 2 of the Bill of Rights;

(b)  Insufficient importance or weight was given to state acquiescence;

(c)  Though the Director listed relevant country of origin information (“COI”) that supported the applicant’s belief that the police in his country would not be able to protect him, such COI was not considered or given enough weight;

(d)  The Director showed an unfair attitude, and failed to meet the required high standards of fairness.

15.  However, the applicant did not provide any particulars for these grounds.

16.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness.  I am satisfied that the Board was entitled to reach the conclusion of lack of risk of harm after it had considered the minor nature of the chopped wound and the fact that the applicant having lost contact with the wife for so long.  The written grounds the applicant provided neither relate to the Board’s Decision nor do they condescend to particulars. The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision.

17.  Before disposing this case, I should mention an oddity in relation to the “Immigration History” set out in Part (II), or [7] of the Director’s Decision. In this paragraph, the Director stated that the applicant arrived in Hong Kong on 15 January 2016, and was permitted to remain as a visitor until 29 January 2016, but did not depart, and started to overstay.  The applicant only surrendered himself to the Immigration Department on 1 February 2016. This immigration history was repeated at [5] – [7] of the Board’s Decision.

18.  The above information appears to be very different to the background information of the applicant as stated in [7.2] of the Director’s Decision and at [4] of the Board’s Decision, both of which state that the applicant was employed as a domestic helper in Hong Kong from 1992 to 2012.

19.  Notwithstanding the inconsistencies stated above, this court is nonetheless satisfied that they are immaterial. Having examined the applicant’s information stated in the NCF, I am satisfied that the information set out in [7] of the Director’s Decision and [5]-[7] of the Board’s Decision is only inadvertency.  I do not find that the assessments by the Director and the Board based on the applicant’s personal background of having arrived in Hong Kong in 1992 and worked as a domestic helper for 20 years have been tainted by this inadvertency.

20.  In the circumstances, this court is satisfied that the applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[8].

Order

21.  The Leave Application be 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