DELA CERNA BILLY BUMACOD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1057/2020

[2025] HKCFI 3518

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1057 of 2020

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 oral submissions by the Applicant in open court;

1.  The Applicant’s Form 86 be amended as per paragraph 2 of the “Observations for the Applicant” below; and

2.  The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  By a Form 86 filed on 1 June 2020 (“Form 86”), the Applicant sought leave to apply for judicial review against a decision made by Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB/NRCPO”) on 28 May 2020 assessing his non-refoulement claim (“the Board Decision”).

2.  The Board Decision was made pursuant to a notice of appeal/petition against the Director of Immigration (“DI”)’s tier-one decision dated 9 March 2020.  On my own motion, I amended the Form 86 to name the DI as a putative interested party.    

3.  In the oral hearing before this Court, the Applicant reiterated that he wanted to stay in Hong Kong; he had nothing to say in relation to the legality, rationality or procedural fairness of the Board Decision.     

4.  The Applicant claimed to be national of the Philippines and a drug trafficker there.  The basis of his non-refoulement claim was that if refouled, he would be at risk of being killed/harmed by the Government under the then President Duterte’s “War on Drugs”.  The Applicant claimed that he had a well-founded fear of being persecuted by the State authorities against the particular social group of “persons involved in dangerous drugs”, to which he belonged, in the Philippines. The Applicant also claimed that he would, out of this claimed identity as a drug trafficker, be subject to real risk of being tortured and/or violated his rights under the Hong Kong Bill of Rights (particularly his right to life under Article 2).  He claimed that he was the 9^th person named in the wanted list of a local police station in the Philippines.  

5.  In the Board Decision, the member/adjudicator of the TCAB/NRCPO identified the correct principles in relation to how credibility should be assessed (see, for example, paragraph 77 thereof).  She drew reference to the following facts and circumstances: (a) there was no objective support he was in any wanted list of a local police station; (b) the Applicant was issued a passport and allowed to depart from the Philippines after the “War on Drugs” had begun; (c) he stayed in Macau for 2 months before going back to the Philippines, also after the “War on Drugs” had begun; (d) knowing that the Applicant had been absent from the Philippines for 2 months in 2017 (he was then subject to a reporting requirement to the local police station), the local police did not take action to constrain his movement, and he again could leave the Philippines by his passport.  As a result, the member/adjudicator concluded that there was no or no reliable evidence that the Applicant would be subject to any real risk of physical and/or mental suffering of the requisite severity should he return to the Philippines.  Moreover, there was no or no reliable evidence that he would be subject to any well-founded fear of being persecuted.  The Board did not accept the Applicant’s own assertions to be credible and reliable.

6.  I have reviewed the Board Decision vigorously and anxiously.  In my view, the Board Decision was supported by sound factual assessment with proper reasoning.  I am unable to detect any potential illegality or irrationality.  No allegation of procedural unfairness has been raised.  It has been reiterated time and again that the primary responsibility for the factual assessment of whether any risk of ill-treatment exists lies with the TCAB/NRCPO.  In the absence of any errors of law, procedural unfairness or irrationality, the Court would not reopen their findings or make a determination on the case afresh.  The role of the Court in a judicial review is not to provide a further avenue of appeal (see Re Lakhwinder Singh [2018] HKCA 246). 

7.  The leave application to apply for judicial review is thus 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