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HCAL 2219/2023
[2026] HKCFI 4723
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2219 OF 2023
BETWEEN
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Rosario Nemesio Jr. Reyes |
Applicant |
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Torture Claims Appeal Board |
Putative |
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Respondent |
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Director of Immigration |
Putative |
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Interested Party |
Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
1. On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the name of the putative interested party be amended to “Director of Immigration”.
2. The applicant’s application for leave to apply for judicial review be dismissed.
Observations for the applicant:
The Leave Application
1. By way of Form 86 dated and filed on 11 December 2023, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 1 December 2023 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL002219_2023_files/the_Board's_Decision.pdf
2. The Board found that the applicant had failed to demonstrate that he was entitled to non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board dismissed his appeal/petition against the decision of the Director of Immigration (“the Director”) dated 1 June 2023 and affirmed the same, which rejected his non-refoulement claim.
Amendments
3. In Form 86, the applicant named the Board as both the putative respondent and the putative interested party, but spelt the Board’s name wrong when named it as the putative respondent.
4. In fact, the Board should only be the putative respondent, and the Director should be the putative interested party.
5. Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party to “Director of Immigration”.
The applicant’s case
6. It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.
7. In sum, the applicant claimed for non-refoulement protection because if refouled to the Philippines, he would be at risk of being harmed or killed by a man named Joseph, who was a member of the New People’s Army (“NPA”), and Joseph demanded him to leave his house as Joseph simply wanted to take it.
Disposal on paper
8. The applicant did not request for an oral hearing of the Leave Application. This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court. Hence, the Leave Application is dealt with on paper.
Grounds for judicial review
9. The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).
10. The applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affidavit dated 11 December 2023. He only mentioned in the said affidavit that he would like to reject and review the Board’s Decision as they disregarded his dangerous situation.
Discussion
11. First of all, the applicant’s danger in his own country had been duly assessed but rejected by the Board. If he intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.
12. The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness, or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).
13. Thus, despite the fact that the applicant did not advance any valid ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid.
14. In assessing the appeal/petition by the applicant, the Board held an oral hearing on 21 November 2023. The applicant was present and was given the chance to present his case to the Board in person.
15. As can be seen from the Board’s Decision, the Board gave full and detailed reasoning in rejecting the applicant’s claims. The analysis and findings of the Board in relation to the applicant’s claim were laid out in paragraphs 42 to 58 of the Board’s Decision, and it is not necessary for this court to repeat the same here.
16. In gist, the Board found that the applicant’s claim was purely based on his words and no evidence was adduced to support the same. There was even no evidence that Joseph was from NPA. The applicant’s evidence relating to the facts on which his claim was based was inconsistent and questionable. The Board did not find his evidence, even to the low standard applicable, to be credible.
17. Even on the applicant’s own evidence, he was not seriously harmed in the only fist fight with Joseph. The Board found that the evidence had shown that Joseph and the 2 men with him had no intention to harm him seriously. The applicant never met Joseph and his men again after he left his house in November 2021. The applicant’s wife and children had never encountered any harm in the Philippines. Moreover, the applicant lived in Manila and Cebu without encountering anything of significance until he left the Philippines to come to Hong Kong in January 2023. The Board considered that the alleged ill-treatment which the applicant suffered in the past, did not attain a minimum level of severity required to establish a non-refoulement claim.
18. Moreover, in the incidents described by the applicant, Joseph was acting in his personal and private capacity. There was no evidence of state acquiescence and the applicant had not reported the alleged threats to the police or other authorities in the Philippines. The Board also found it clear that the applicant was not threatened or ill-treated in the past on account of any Convention reasons.
19. As to state protection, the Board had gone through extensive country of origin information (“COI”) in paragraphs 19 to 21 of the Board’s Decision to find that despite police inefficiency and corruption in the Philippines, government reforms were progressing well and had achieved positive results. There was objective information to show that the Philippines government was not unwilling or incapable to enforce the law and combat corruption, and reasonable state protection was available to the applicant in his country.
20. As to internal relocation, the Board had also given its reasons in paragraphs 22 to 24 of the Board’s Decision for the finding that it would not be unduly harsh for the applicant to relocate to a place of his choice in the Philippines to further negate his perceived risk.
21. Thus, the Board concluded that the applicant’s appeal/petition and his claim for non-refoulement protection in Hong Kong failed on all the applicable grounds under the USM.
22. The finding of facts, including the assessment of evidence, COI and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.
23. Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no error of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.
24. As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.
Conclusion
25. For reasons aforesaid, the Leave Application is dismissed.
Dated the 19th day of August 2026
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( Gladys LEE )
for Registrar, High Court
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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 his 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/Handed to the applicant/the applicant’s solicitors
on: 19/08/2026
Applicant’s ref. no:
Nil |
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Sent/Handed 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: 19/08/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 21822
Director of Immigration
Putative interested party’s ref. no.:
ImmD/CR T/C 356/23 (formerly RBCZ 5000277/23)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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