PACLIPAN NEIL OLIVER ONES v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 894/2023

[2025] HKCFI 403

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 894 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.

Observation for the Applicant:

Introduction

1.  This is an application by Mr Paclipan Neil Oliver Ones (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 5 June 2023 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 5 November 2021 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant

2.  The Applicant is a Filipino. He was born on 26 January 1978 in Lanao Del Norte, the Philippines. He received 13 years of education and had worked as an electrician and a technical specialist. He also took up various electrical jobs as a self-employed person.

The Claim

3.  The Applicant claimed that he started trafficking in drugs in the Philippines in January 2018. He stopped all trafficking activities in March 2019 when he learnt that many drug traffickers had been killed in the Philippines.

4.  After the Applicant stopped engaging in drug trafficking activities, he started receiving threatening messages from April 2019 (“Messages”). The Messages asked the Applicant to show up or his entire family would be killed. The Applicant believed that the Messages were sent by the drug syndicate he used to work for (“Drug Syndicate”). Due to the perceived threats from the Drug Syndicate, the Applicant decided to leave the country.

5.  The Applicant came to Hong Kong with his own Filipino passport. After arriving in Hong Kong, his friend and nephew told him that someone was looking for him in the Philippines. The Applicant believed that members of the Drug Syndicate were behind these events. He confirmed that neither he nor his family had been physically harmed in the Philippines.

6.  He claimed that he would be harmed or killed by the Drug Syndicate if he were returned to the Philippines.

Procedural history

7.  The Applicant last arrived in Hong Kong on 16 November 2019 as a visitor. He was permitted to remain in Hong Kong until 30 November 2019. He overstayed and surrendered to the Immigration Department on 24 March 2021.

8.  By a written representation of 16 April 2021, the Applicant lodged the Claim. The Director had considered the Claim on all applicable grounds under the Unified Screening Mechanism (“USM”), namely:

(a)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“Ordinance”);

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR” and “BOR 2”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the BOR (“BOR 3”); and

(d)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees (“Refugees Convention”).

9.  By the DOI Decision, the Director refused the Claim. The Applicant later filed an appeal/petition to the Board (“Appeal”). By the Board’s Decision, the Board affirmed the DOI Decision. The Board rejected and dismissed the Appeal.

10.  On 8 June 2023, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the DOI Decision and Board’s Decision. The Applicant filed his supporting affidavit on the same day (“Supporting Affidavit”). In the Form 86, the Applicant named the Director and the Board as the proposed respondents.

11.  The Applicant seeks judicial review against both the DOI Decision and the Board’s Decision. It is noted that the Applicant had mistakenly stated 5 November 2023 as the date of the DOI Decision in the Form 86 when the DOI Decision should be dated 5 November 2021.

The DOI Decision

12.  After considering all the relevant circumstances, the Director was of the view that there were no substantial grounds for believing that the Drug Syndicate intended to harm the Applicant. This was because neither the Applicant nor his family had been harmed in the Philippines. On the Applicant’s own account, the Messages were from unknown sources. Apart from his mere speculation or bare assertion, nothing from the Applicant’s claimed facts indicated that the Messages were sent by the Drug Syndicate or had anything to do with his previous involvement in drug dealings.

13.  According to the Applicant, he only took part in drug trafficking as a frontline courier in delivering the drugs. He had no knowledge regarding the background of the Drug Syndicate and he did not process any specialties that the Drug Syndicate were in need. There was also no information suggesting that the Drug Syndicate had any dispute with/grudges against the Applicant causing them to have persistent interest in locating the Applicant and/or harming him. The Director did not accept that the Applicant’s claimed risk of being harmed by the Drug Syndicate was real and foreseeable.

14.  The Director also noted that the Applicant did not leave the Philippines immediately after receiving the Messages and his actions prior to leaving the Philippines suggested that he did not perceive any imminent and substantial risk to his safety.

15.  The Applicant did not encountered any problem upon his departing the Philippines with his Filipino passport. There was no indication that the Filipino government had set him as a target. There was no indication that the life threats inflicted on the Applicant were acting under the encouragement, acquiescence or assistance of the Filipino police or any official authorities of the Philippines. There were no substantial grounds to believe that the Filipino government was involved in or will provide any form of encouragement to the Drug Syndicate in threatening or harming the Applicant.

16.  On the issue of state protection, after considering the relevant country of origin information (“COI”), the Director found that the Filipino government was able and willing to protect the rights of its citizens and reasonable state protection would be available to the Applicant, if necessary. It was out of the Applicant’s own volition not to report to the police or authorities against the threats and feared risk of harm from the Drug Syndicate, rather than he was obstructed to do so or had been refused by the police or the authorities.

17.  The Director assessed that the Drug Syndicate was not as powerful as the Applicant asserted and the Applicant’s feared ill-treatment from the Drug Syndicate was localized at most in the locality near his hometown in the Philippines. There was nothing suggesting that the Drug Syndicate had the resources and would exhaust such resources for the purposes of locating the Applicant in the whole country of the Philippines. The Director found that internal relocation would be viable. If the Applicant moved to Davao City or Cebu, the Drug Syndicate would have great difficulties in locating him. After considering his age and work experience, the Director found that it would not be unduly harsh to expect him to relocate and lead a normal life.

18.  For the reasons set out in the DOI Decision, the Director rejected the Claim.

The Board’s Decision

19.  The Applicant chose not to give oral evidence at the hearing before the Board.

20.  The Board found that the Applicant’s story vague and lack details at times. There were also a number of inconsistencies in the Applicant’s evidence which were discussed in §§50-56 of the Board’s Decision.

21.  The Board noted that the Applicant’s case was mostly based on hearsay evidence and was not supported by any corroborating evidence. The Board also noted that the Applicant could not give any detail about the Drug Syndicate, such as the names of its members.

22.  The Board nevertheless proceeded on the basis that the Applicant’s story was true. The Applicant had never suffered any physical harm. The Board found that neither the physical nor the mental harm attained a minimum level of severity and the Applicant’s adduced evidence did not establish any substantial ground to believe that there would be a foreseeable and real risk of harm to be caused to the Applicant.

23.  The Board noted that the Applicant never sought assistance from the Filipino police. It held that if the Applicant had done so, the Filipino authorities would not acquiesce in the ill-treatment of the Applicant and would have provided adequate protection to him (§§69-70 of the Board’s Decision).

24.  The Board further found that with his age and work experience, it would not be unreasonable or unduly harsh to expect the Applicant to relocate to Davoa or Manila to avoid the perceived risk from the Drug Syndicate.

25.  The Board found that the Applicant had failed to establish his case on all applicable grounds under the USM. The Board affirmed the DOI Decision and dismissed the Appeal.

Legal principles applicable to judicial review

26.  In a judicial review, the court does not step into the shoes of the decision makers.

27.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“The role of the Court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] 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 the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI 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: 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.”

28.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

29.  The Applicant did not advance any grounds for his intended judicial review in the Form 86. In the Supporting Affidavit, the Applicant only stated that: “I am asking for reversal of the decision of the above respondents [ie the Board and the Director] against the refusal of the appeal.” He then produced the Board’s Decision together with the covering letter as exhibits. No other supporting documents were produced to the Supporting Affidavit.

30.  By a letter date 22 October 2024 (“Letter”), the Applicant stated that his family called him on 25 August 2023 telling him that two unknown persons went to his rented apartment in the Philippines to look for him and one of them broke the window glass of the apartment and shouted his name. The Applicant stated that: “I know this 2 unknown person was in the group that I was in before.” The Applicant produced 3 photos at the court hearing of 30 December 2024 (“Court Hearing”) said to be photos of the aforesaid broken windows (“Photos”). The Photos did not show the so called “unknown person”.

31.  The Applicant further stated in the Letter that he called his mother on 10 October 2023 and “she tell me that dont [sic] come back to Philippines. Yet 2 men wearing helmets, with motorcycle have gun and they threatened if they will find me they will kill me. So Im [sic] scared to go back to my country.”

32.  The aforesaid information and the Photos had not previously been put before the Board. They are fresh evidence. As pointed out by the Court of Appeal in Kwok Hay Kwong v Medical Council of Hong Kong [2007] 3 HKLRD 213 at 219 that the conditions in Ladd v Marshall [1954] 1 WLR 1489 on the admission of fresh evidence on appeal were equally applicable to judicial review. The conditions were: (a) that the evidence could not have been obtained with reasonable diligence for use at the hearing; (b) the evidence was such that it would probably have an important influence on the result of the case; and (c) the evidence must be apparently credible.

33.  The aforesaid events occurred and the Photos were taken after the date of the hearing before the Board (ie 29 November 2022) and thus could not have been obtained with reasonable diligence for use at the hearing before the Board. However, I do not accept that they are apparently credible and I do not see that the evidence would probably have an important influence on the result of the case.

34.  The Applicant stated in the Letter that the 2 people attending his apartment were “unknown person”. As they were “unknown person”, how may the Applicant “know this 2 unknown person was in the group that I was in before”? This is incredible. According to the Applicant he did not join any group. He only delivered drugs for some drug dealers whom he did not know. In §6.9 of the DOI Decision, it was recorded that:

“In the Interview, you expressed that you had no knowledge about the background of the drug syndicate. You also revealed that your Friend was your only contact point when you were in drug trafficking, and you had never had any direct dealings with the syndicate behind.”

35.  The same problem of the Applicant’s evidence had also been discussed in §50 of the Board’s Decision. In the Letter, the Applicant stated that when the 2 men attended his apartment, his family were not there and out of town. Yet, he said in the Letter that his mother told him the 2 men were “wearing helmets, with motorcycle have gun and they threatened if they will find [the Applicant] they will kill [him].” This is again incredible.

36.  Other than the Applicant’s unsupported bare assertion, nothing in the Letter or the Photos showed that the 2 men (if there were such people) were came from the Drug Syndicate.

37.  The Applicant had previously told the Director and the Board that some people were looking for him after he came to Hong Kong and he suspected that these people were sent by the Drug Syndicate. The Director and the Board had already considered and taken into account such evidence before deciding on the Claim and the Appeal. Neither the Letter nor the Photos add anything new to the Applicant’s case. I do not see that they would have an important influence on the result of the case. Thus, two of the requirements of Ladd v Marshall were not satisfied and they would not be admitted as evidence in this intended judicial review. In any event, the Letter and the Photos do not take the Applicant’s case any further nor assist the Applicant.

38.  The Applicant seeks leave to apply for judicial review against, inter alia, the DOI Decision in this application. As pointed out by DHCJ Woodcock (as she then was) in HCAL 401/2017, there was no room for judicial review of the Director’s decision unless there were exceptional grounds as the applicant had already utilized the channel of appealing the Director’s decision to the Board which appeal/petition had been treated as a de novo hearing or a rehearing. (§6 of [2018] HKCFI 409) The Applicant did not put forward any exceptional grounds and I see none in this case justifying the court to grant leave for the Applicant to seek judicial review of the DOI Decision.

39.  For the application for proposed judicial review of the Board’s Decision, no proper ground for his intended challenge was stated in the Form 86 and/or the Supporting Affidavit. The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in affirming the DOI Decision, or in what way was the Board’s Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters. At the Court Hearing, the Applicant confirmed that he was unable to identify any error of law, procedural unfairness or irrationality in the Board’s Decision.

40.  Having rigorously examined the Board’s Decision and the DOI Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness.

41.  The Board found that neither the physical, nor mental, harm alleged by the Applicant attained a minimum level of severity. The Applicant had failed to establish that there was a real chance that he would suffer harm if returned to the Philippines; or a personal and real risk of his absolute and non-derogable rights under BOR 2 or BOR 3 being violated upon his return to the Philippines. The Applicant’s case was not covered by any of the reasons referred to in the Refugees Convention or “torture” as defined under section 37U of the Ordinance. The Board further found that reasonable state protection would be available and internal relocation viable to the Applicant.

42.  It was on such basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection under any of the four applicable grounds under the USM. These are findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality. In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The proposed judicial review has no realistic prospects of success.

Conclusion

43.  In the premise and having considered the Board’s Decision and the DOI Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.

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