GAO-AN REYNALDO DANGLA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2054/2023

[2026] HKCFI 3887

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2054 of 2023

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 to name only the Torture Claims Appeal Board as the putative respondent and only the Director of Immigration as the putative interested party; and

2.  Leave to apply for judicial review be dismissed.

Observations for the Applicant:

INTRODUCTION

1.  By a Form 86 filed on 17 November 2023 (“Form 86”), the applicant applied for leave to apply for judicial review of a decision by the Torture Claims Appeal Board (“the Board”) dated 26 October 2023 (“the Board’s Decision”), which affirmed a decision by the Director of Immigration (“the Director”) dated 30 September 2021 in refusing the applicant’s non-refoulement protection claim. He named the Board and the Director as the proposed respondent as well as interested parties.

2.  I amended the Form 86 on my own motion to name only the Board as the putative respondent and only the Director as the putative interested party.

3.  The applicant did not request for a hearing and this application is to be dealt with by way of consideration of documents only.

BACKGROUND

4.  The applicant is a national of the Philippines. He seeks non-refoulement protection on the basis that if he is refouled, he would be harmed or killed by members of the New People’s Army (“NPA”) as he was a former member who had decided to leave. His personal background, the relevant facts and relevant procedural history have been succinctly set out in the Board’s Decision, which can be accessed through a hyperlink[1]. I shall not repeat the same here.

DISCUSSION

5.  In a judicial review, this court does not provide a further avenue of appeal. Though in non-refoulement case an enhanced standard in scrutinizing the decision of the Board is required given the seriousness of the issue at hand, this court should not usurp the role of the Board, which together with the Director are the primary decision-makers. This 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 (Nupur Mst v Director of Immigration [2018] HKCA 524, [14(1)]). There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anor (2007) 10 HKCFAR 676).

6.  In the Form 86 and his affidavit filed in support of this application, the applicant included a 3-page “Grounds of Appeal” which was used for the purpose of the appeal of the Director’s decision to the Board. It basically repeated the same non-refoulement claims that were considered by the Director. The applicant did not point to any particular error of law, procedural unfairness or irrationality of the Board’s Decision.

7.  Looking at the Board’s Decision, in my view, the Board has carefully considered the applicant’s case and evidence [40-59].

8.  The Board bore in mind the correct principles in respect of each of the four applicable grounds under the USM [4, 10-32], thoroughly analysed each, including the applicant’s credibility [60-75], before coming to the findings and conclusions that neither the applicant’s allegations nor any of the grounds was made out [76, 77-82].

9.  The Board further concluded that internal relocation would also have been available to the Applicant [74].

10.  In the circumstances, I do not see any error of law, procedural unfairness or irrationality in the Board’s Decision, despite rigorous examination and anxious scrutiny.

Conclusion

11.  For the above reasons, I am not satisfied that this court should intervene by way of judicial review. I therefore dismiss the application.

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