RE EUROPA BOBBY JILONGOS

CACV 235/2025, [2025] HKCA 986

On appeal from [2025] HKCFI 1419

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 235 OF 2025

(ON APPEAL FROM HCAL NO. 3657 OF 2019)

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J U D G M E N T

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Hon Chu VP (giving the Judgment of the Court):

1.  This is the applicant’s appeal against the judgment of Deputy High Court Judge Teresa Wu (“the Judge”) given on 17 April 2025 ([2025] HKCFI 1419) dismissing his application for leave to apply for judicial review. The intended judicial review was in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 29 November 2019, which dismissed his appeal against the decision of the Director of Immigration (“the Director”) dated 27 November 2018 rejecting his non-refoulement protection claim.

The applicant’s claim

2.  The applicant is a national of the Philippines, aged 50. He entered Hong Kong on 22 December 2017 as a visitor. When the permission for his stay expired, he did not depart and has since overstayed. He was arrested by the police on 10 June 2018 and was convicted on two drug-related offences. After his release from prison, he lodged a non-refoulement claim on 31 August 2018.

3.  The applicant’s claim was based on fear of being harmed or killed by two groups of people: (i) people from the “Seventh Day Adventist” and “Iglesia ni Cristo” (“the Religious Group”) because of his conversion from Catholicism to Islam; and (ii) the local and military police who considered him to be a terrorist. His claim was set out in detail in [7] of the Director’s decision and [39] of the Board’s decision.

4.  In gist, the applicant claims to be a target of frequent assaults, oppressions and discriminations by the Religious Group after he converted from Christianity to become a Muslim in 2007. He also claims to be a target of the police because they considered him a terrorist. He was detained and beaten up by the local police in his hometown in 2016, and subsequently by the military police in Marawi City in 2017 during a conflict between the government and the Muslim rebels. After he managed to escape by bribing the military police, he took refuge in his mother’s place in Marbel, South Cotabato. In June 2017, he left for Hong Kong for the first time and subsequently returned to the Philippines to his mother’s place where he did not encounter any problems. In December 2017, he left for Hong Kong again and has since overstayed.

The decisions of the Director and the Board

5.  By a decision dated 27 November 2018, the Director rejected the applicant’s non-refoulement claim having regard to the torture risk[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4].

6.  The applicant appealed to the Board. A hearing took place on 27 September 2019 during which the applicant testified and answered questions from the Board. By a decision dated 29 November 2019, the Board dismissed the appeal.

7.  In summary, the Board accepted the basic facts of the applicant’s claim, namely he had been verbally threatened by the people from the Religious Group and he had been detained by the police on two occasions. However, due to lack of reliable evidence, the Board did not accept that after all these years the Religious Group or the police still had any personal interest against him or to pursue him. The Board also found that the evidence did not show he had been subjected to physical and/or mental suffering to the requisite severity. Based on the relevant country of origin information (COI), the Board was of the view that state protection would be available to him, and rejected his assertion that he would not have state protection due to his conversion of faith as mere speculation. The Board assessed that internal relocation to Davao City or Quezon City is a viable option. Overall, the Board found that the applicant failed to establish his entitlement to non-refoulement protection under any of the applicable grounds.

The Judge’s decision

8.  By a Form 86 dated 9 December 2019, the applicant applied for leave to judicially review the Board’s decision. He did not set out any ground for seeking relief in his application, other than stating in his supporting affirmation that he would like to reject and review the Board’s decision as it disregarded his dangerous situation.

9.  The Judge held an oral hearing on 14 February 2025. By a Form CALL-1 dated 17 April 2025, the Judge refused to give leave for the applicant to apply for judicial review, and gave her reasons at [5] to [11] as follows:

“5. As can be seen, the Board did not accept that there was, or there was reliable, evidence to show that the Religious People or Police had any personal interest in the Applicant, he would face any problems whatsoever in the Philippines, he had been subjected to any physical and/or mental suffering at all and/or of the requisite severity, and the state of the Philippines was unwilling to help him for a Convention reason (see §42 of the Board’s Decision).

6. The Board took the view, after considering the totality of evidence, that it was the Applicant’s “mere speculation” that the Religious People or Police would harm, much less kill him, if he were to return to the Philippines. The Religious People only verbally threatened him. He accepted that they were essentially people from the Home Area. It was clear that they did not bear any personal grudge against him, as no one further pursued him after he left. As to the Police, they detained him twice, believing that he was a terrorist. However, they had released him on both occasions. He was not further troubled afterwards and had been allowed to depart Philippines on those two occasions.

7. Based on these findings of fact and the application of the relevant law and legal principles, the Board was not satisfied that there was Persecution Risk (§§44-67, 90), BOR 2 Risk (§§68-69, 91), BOR 3 Risk (§§70-75, 92) or Torture Risk (§§76-88, 93) and had rejected the Applicant’s non-refoulement claim.

8. The assessment of evidence, COI materials, risk of harm, state protection and viability of internal relocation were primarily within the province of the Board. The Applicant is unable to show that there was any error of law, procedural unfairness or irrationality in the Board’s Decision. He has failed to identify any grounds for judicial review in this case: see Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015 (22 December 2016) at §142.

9. The Applicant has also completely failed to meet the required standard of providing the Court with all relevant information. An applicant for leave is obligated to make full and frank disclosure of not only all material facts known to him but also the potential legal answers to his claims: see Re Leung Kwok Hung, HCAL 83/2012 (28 September 2012) at §35. It is insufficient for him to merely exhibit a copy of the Board’s Decision in his supporting affirmation, hoping that the Court may step in to adjudicate the matter afresh in the absence of any valid public law grounds. The fact that he is acting in person does not relieve him of such duty nor provide answer for his non-compliance.

10. Unless there are sufficient public law errors or grounds, the Court should not usurp the role of the Board or intervene by way of judicial review. As has been repeatedly emphasized in similar cases, the Court’s role in a judicial review is not to provide a further avenue of appeal: see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.

11. For these reasons, the Applicant’s intended challenge of the Board’s Decision is plainly not reasonably arguable with any realistic prospects of success: see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676 and no leave should be granted. The requirement for leave to apply for judicial review operates to filter out unarguable challenges: see section 21K(3) of the High Court Ordinance, Cap. 4 and Order 53 rule 3(1) of the Rules of the High Court, Cap. 4A.”

This appeal

10.  By a notice of appeal dated 28 April 2025, the applicant appealed the Judge’s decision to this court. The grounds of appeal in the notice of appeal stated that:

“[The applicant] will face hardship if he is to return back to his home country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.”

11.  The applicant’s written submissions lodged on 3 September 2025 stated the following:

(1)  The decision has the effect of finally disposing of the applicant’s claim, making him liable to be removed and entailing significant implications for his substantive right not to be subjected to torture and his right to non-refoulement protection. Hence, high standards of fairness are required on the part of the decision maker in the determination of torture claim as life and limb are in jeopardy and the applicant’s fundamental human right not to be subjected to torture is involved: Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 at [43] to [45] and [51]; and ST v Betty Kwan[5][2014] 4 HKLRD 277.

(2)  The appeal before the Board is a rehearing, but the Board erred in approaching the matter by trying to see if it could “find fault with the decision of the Immigration Officer”, when it should have considered matters such as the country conditions.

(3)  At common law, there are minimum standards of procedural fairness and a decision-maker is under a duty to act fairly, which is a “constitutional duty”: The Council of Civil Service Unions, v Minister for Civil Service [1985] AC 374 at 383D; Pearl Securities Limited v Stock Exchange of Hong Kong [1999] 2 HKLRD 243 at 253C-D; and Rowse v Secretary for the Civil Service & Ors [2008] 5 HKLRD 217 at [134].

11.  At the hearing of the appeal, the applicant indicated he had nothing to say orally.

Our reasons for judgment

12.  The general principles regarding an appeal in a non-refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14. In sum, the role of the court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Though in non-refoulement cases the court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the court should not usurp the role of the Board. Assessment of evidence and Country of Origin Information materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.

13.  In light of the established legal principles set out above, we are of the view that the appeal has no merits. Our reasons are as follows:

(1)  The notice of appeal raised for the first time a complaint on the Board’s use of and reliance on COI. It was not argued before the Judge. It is not permissible for the applicant to arise on appeal a ground that was not argued below, especially when this is a fact-sensitive issue: Flywin Co Ltd v Strong & Associates Ltd (2002) 5 HKCFAR 356.

(2)  In any event, the complaint over the Board’s use and reliance on COI is vague and devoid of particulars. The applicant has not identified which piece of COI relied on by the Board was incorrect or outdated, and/or how that would impact on the correctness of the Board’s conclusion on each of the applicable grounds.

(3)  The applicant’s assertion that he will face hardship or will be in danger if he returns to his home country cannot stand in light of the Board’s assessment on the risk of harm and its finding that the claimed risk of harm is not made out. This is an assessment within the remit of the Board as the primary decision maker. The applicant has not advanced any arguable ground to challenge the factual findings made by the Board.

(4)  The complaint in the written submissions that the Board did not approach the appeal as a rehearing is factually incorrect. It is evident from the Board’s decision that it did not approach the appeal by simply reviewing the Director’s decision to see if it was justified. On the contrary, the Board gave independent and detailed consideration and analysis of the applicant’s claim before reaching its own findings and conclusion on the case.

(5)  As to the cases and legal principles cited in the written submissions, the applicant has not explained how they relate or apply to his case or appeal. Nor has he indicated whether, and if so how, the Judge erred in light of the legal principles.

(6)  Further and more importantly, the applicant completely fails to identify any error in the Judge’s decision or the reasons she gave for her decision. The Judge rightly pointed out that assessment of credibility and evaluation of risks are within the purview of the Board, and that the applicant has not shown any proper basis to challenge the Board’s decision. The Judge had also, after scrutinising the Board’s decision, concluded, for the reasons she gave that there was no proper basis to disturb it. We see no proper basis to interfere with the Judge’s holding that the intended judicial review had no reasonable prospect of success.

Order

14.  For the above reasons, the applicant’s appeal is devoid of merits. Accordingly, we dismiss the appeal.