ANTONIO RUSSELL MOCYAT v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 669/2023

[2025] HKCFI 4062

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 669 of 2023

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 oral submissions by the Applicant in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 8 May 2023 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 19 April 2023 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 13 July 2022 (the “Notice”), refusing his non-refoulement application.

2.  The Applicant is a national of the Republic of the Philippines. His personal background, the factual background leading to the present application, the basis of his claim and the arguments he advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision. These will not be repeated here. The hyperlink to the Board’s Decision is included below [1] for reference. In gist, he claims that if returned to the Philippines, he will be harmed or killed by his girlfriend’s father who is a member of the New People’s Army (the “NPA”).

3.  The Applicant testified before the Board. The Board identified a number of significant inconsistencies in his evidence. It found him incredible and that he had misrepresented the power of the NPA. On the basis of authoritative country of origin information (“COI”), the Board found the NPA had been severely weakened in Ilocos Sur where the Applicant lived. It found the Applicant would not have any real fear of the NPA as an organization and that, in terms of the claim, at its highest he would only have a domestic personal dispute with an NPA member or members. It found there is no evidence of a real chance that the Applicant would be killed, harmed or tortured by a public official, or that he would face a genuine and substantial risk of being subjected to torture or cruel inhuman, degrading treatment or punishment, or that he will be subjected to persecution for a reason protected under the 1951 Convention relating to the status of Refugees and its 1967 Protocol, if returned to the Philippines. Applying the law applicable to non-refoulement protection under the Unified Screening Mechanism (the “USM”), it found the Applicant is not entitled to protection under any of the applicable grounds.

Grounds of application

4.  The Applicant has not advanced any grounds of application in his Form 86. In his supporting affirmation he reiterated his dissatisfaction with the Decision. At the hearing, after the legal principles applicable to judicial review were explained to him, the Applicant confirmed he had no complaint about errors of law, procedural unfairness and irrationality in the Decision. In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision, which the Court will turn to in the next section.

Overall scrutiny

5.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board analysed the evidence carefully, tested it against common sense and inherent probability and gave reasons for its finding. It found the Applicant incredible and rejected much of his evidence. Applying the law applicable to non-refoulement protection to the limited fact it accepted, the Board found the Applicant had failed to establish the factual basis to support his claim for non‑refoulement protection under any of the applicable grounds. These are mixed findings of fact and of the law. Insofar as they are finding of the law, they are absolutely correct. Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.

Conclusion

6.  For the above reasons, the leave application is refused.

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