BANTIDING RUBEN JR PANDUYOS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2396/2019

[2025] HKCFI 426

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2396 of 2019

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;

The Leave Application be dismissed.

Observations for the Applicant:

Introduction

1.  By prescribed Form 86 filed on 19 August 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 16 August 2019 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 21 June 2019 (“Director’s Decision”) rejecting the applicant's non-refoulement claim.

2.  As the applicant had requested for a hearing of the Leave Application, this court held a hearing on 19 December 2024. The applicant attended in person.

Background

3.  The background as taken from the respective decisions of the Director and the Board referred to above can be briefly stated as follows.

4.  The applicant is a national of the Philippines. He came to Hong Kong on 22 March 2012 as a visitor and was allowed to stay until 5 April 2012. Upon the expiry of his visa, he overstayed. On 20 December 2012, he was arrested by police. He was later convicted and sentenced to 2 months’ imprisonment for the offence of breach of condition of stay. On 10 June 2014 and 2 May 2019, the applicant lodged a non-refoulement claim, and the applicant’s case was considered under all applicable grounds - the risk of torture[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4] under the USM.[5] The claim was based on a fear that if refouled, he would be harmed to killed by Josephine whose son killed the applicant’s father and seriously injured the mother in a motorcycle accident in February 2012.

5.  As Josephine’s son was a minor, Josephine represented the son for mediation. After mediation, a settlement was reached with the signing of the settlement agreement between Josephine and the applicant for the death and injuries respectively caused to the applicant’s father and mother. After the settlement agreement was signed, Josephine, together with her daughter, threatened the applicant that time would come for him to pay them back.

6.  Several days after the signing of the settlement agreement, the applicant was told that five unknown men were looking for him. The applicant’s wife advised him to leave Hong Kong to join her who was working in Hong Kong at the time.

7.  In the Director’s Decision, the Director decided against the applicant’s claim on all applicable grounds. The Director assessed the claimed risk of ill-treatment to have been low, the alleged risk of harm arising from the dispute was far-fetched, the problem was of a private nature, and there was no evidence suggesting that the government or public officials were involved. After having considered the country of origin information reports (“COI”), the Director was satisfied that state protection and internal relocation alternatives were available and reasonable. Hence, the applicant’s appeal to the Board against the Director’s Decision.

8.  By letter dated 2 July 2019, the applicant requested the Board to make a decision without a hearing of his appeal. By another letter received by the Board on 12 July 2019, the applicant confirmed the same request. The Board then acceded to the applicant’s request and decided to consider the appeal on paper. When assessing the applicant’s credibility, the Board reminded itself that the existence of inconsistencies might not be fatal to a claim. In its evaluation of the applicant’s evidence, the Board found that the applicant’s claim of threats made by Josephine was not convincing. It concluded that the applicant’s evidence regarding his assertion of harm arising from a traffic accident and the later financial settlement unreliable and questionable. In any event, the Board found that the options of reasonable state protection and internal relocation were reasonably available. The Board rejected the applicant’s appeal and affirmed the Director’s Decision.

Legal principles applicable to judicial review

9.  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

10.  The applicant’s Form 86 as well as his supporting affirmation were dated 24 July 2019, which was before the issuance of the Board’s Decision. At the hearing, this court asked the applicant to clarify this anomaly. The applicant was shown these two documents that he had signed and was particularly asked to look at the one page document entitled “Grounds in which Relief is sought” annexed to the Form 86. After he had looked at them, the applicant informed this court that someone came to see him while he was detained in custody. He was asked to sign on these papers. He had no knowledge at all as to the one page annexure. It became obvious that the grounds set out in the annexure to the Form 86 were not prepared with his knowledge or confirmation. The applicant had not adopted them. Since the applicant was acting in person, this court asked him what mistake or error he believed the Board had made. Further, as the applicant had deposed in his supporting affirmation that ‘…I am presently not in possession of any of my documents. I would be in position to submit rest of the documents upon my release’, I asked him whether he had more documents to submit in support of the Leave Application as he had been released for some time.

11.  The applicant replied that he did not know what error the Board had made. He had nothing to say and no documents to submit in support of his Leave Application. Since the applicant had no knowledge of the grounds stated in the Leave Application and had not adopted them at the hearing, the written grounds will be disregarded. In the circumstances, the applicant was unable to put forth any grounds to challenge the Board’s Decision. He did not say on what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.

12.  The Board’s Decision was arrived at after having examined the applicant’s evidence in great detail. It found that the applicant’s account did not amount to any threat or risk. Even if there were any threat, the Board found that the applicant would have the option of internal relocation. These are findings of fact, which the court in a judicial review will not interfere with.

13.  Having rigorously examined the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to all the grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness in the Decisions of the Director and the Board. I find that it was perfectly open to the Board to come to its conclusion that the applicant failed to discharge his burden of proving the asserted fears and risks.

14.  For these reasons, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

Order

15.  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