NAVARRO GARRY RODRIGUEZ AND OTHERS v. TORTURE CLAIMS APPEAL BOARD

HCAL 3519/2019

[2025] HKCFI 6306

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3519 of 2019

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the applicants in open court;

1.  On this court’s own motion, the names of the 1^st to 5^th applicants be amended to “Navarro Garry Rodriguez”, “Navarro Cheryl Castro”, “Navarro Camille Castro”, “Navarro Angel Mae Castro by Navarro Cheryl Castro, her next friend” and “Rodriguez Mary Ann De Guzman” respectively, the name of the putative respondent be amended to “Torture Claims Appeal Board”, the name of the putative interested party be amended to “Director of Immigration” and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 22 November 2019”.

2.  The 1^st, 2^nd and 5^th applicants’ application for leave to apply for judicial review in respect of the Torture Claims Appeal Board’s decision dated 22 November 2019 be dismissed.

3.  Leave granted to the 3^rd and 4^th applicants to apply for judicial review in respect of the Torture Claims Appeal Board’s decision dated 22 November 2019.

4.  The 3^rd and 4^th applicants are directed to issue an originating summons for the intended judicial review on or before 31 December 2025 pursuant to Order 53, rule 5(5) of the Rules of the High Court.

Observations for the applicants:

The Leave Application

1.  By way of Form 86 dated and filed on 27 November 2019, the applicants applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision dated 22 November 2019 without identifying the decision-maker.

2.  The Torture Claims Appeal Board (“the Board”) made a decision dated 22 November 2019 (“the Board’s Decision”) in respect of the applicants’ appeal/petition against the decision of the Director of Immigration (“the Director”) dated 28 January 2019 (“the Director’s Decision”). It is clear that the decision referred to by the applicants in the Leave Application is the Board’s Decision. The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003519_2019_files/the_Board's_Decision.pdf

3.  The Board found that the applicants had failed to establish their case for non-refoulement protection on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board rejected and dismissed the applicants’ appeal/petition and confirmed the Director’s Decision.

Amendments

4.  In Form 86, the names of the applicants were not stated in the same sequence as their names appeared in the Board’s Decision. As this may cause confusion, their names should be re-arranged in the same order as they appeared in the Board’s Decision.

5.  Moreover, Navarro Angel Mae Castro is a minor and represented by her mother Navarro Cheryl Castro as her next friend. Her name should be so stated.

6.  Thus, on this court’s own motion, the names of the 1^st to 5^th applicants are amended to “Navarro Garry Rodriguez”, “Navarro Cheryl Castro”, “Navarro Camille Castro”, “Navarro Angel Mae Castro by Navarro Cheryl Castro, her next friend” and “Rodriguez Mary Ann De Guzman” respectively.

7.  The applicants named “USM” as the putative respondent and “T.C.A.B” as the putative interested party, when the Board should be the putative respondent and the Director should be the putative interested party.

8.  As aforesaid, the decision in respect of which relief is sought in the Leave Application should be the Board’s Decision.

9.  Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board”, the name of the putative interested party is amended to “Director of Immigration”, and the decision in respect of which relief is sought in the Leave Application is amended to “Torture Claims Appeal Board’s decision dated 22 November 2019”.

The applicants’ case

10.  It is not necessary for this court to repeat the details of the applicants’ case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

11.  In sum, the 1^st applicant claimed for non-refoulement protection because if refouled to the Philippines, he would be ill-treated or even killed by Mayor Roger of Bicol as the 1^st applicant’s father killed the son of Mayor Roger.

12.  The 2^nd applicant is the 1^st applicant’s wife. The 3^rd and 4^th applicants are their daughters. The 5^th applicant is the 1^st applicant’s half-sister. The 2^nd to 5^th applicants all relied on the same factual basis of the 1^st applicant’s claim to claim non-refoulement protection.

Oral hearing

13.  The applicants requested for an oral hearing of the Leave Application and their case was heard on 13 November 2025.

14.  The 4^th applicant is a minor and was represented by her mother, ie the 2^nd applicant, at the hearing. However, she should have legal representation under Order 80, rule 2 of the Rules of High Court. The 4^th applicant’s legal aid application was refused by the Director of Legal Aid on 12 October 2025, and the 2^nd applicant confirmed that she would not engage any private lawyer to represent the 4^th applicant. Thus, only the 2^nd applicant was representing the 4^th applicant.

15.  Since the 4^th applicant did not have legal representation, this was an irregularity under the rules as aforesaid. However, this court was of the view that the case should proceed and the 4^th applicant would not be prejudiced. The irregularity was hence waived.

16.  When this court asked the applicants for the grounds of their intended judicial review, the 1^st applicant merely replied that someone threatened to kill them, but he did not know if there was anything wrong with the Board’s Decision. All the other applicants confirmed that their answers were the same as the 1^st applicant and that their lives were in danger.

Grounds for judicial review

17.  The applicants are required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

18.  The applicants did not advance any ground for their intended judicial review in Form 86, nor in the 1^st applicant’s supporting affidavit dated 27 November 2019. All the applicants confirmed at the oral hearing before this court that they would just rely on the 1^st applicant’s said affidavit and they would not file any further affidavit.

19.  As mentioned, none of the applicants asserted any grounds for their intended judicial review at the oral hearing before this court either, save that they said someone threatened to kill them and their lives were in danger.

Discussion

20.  First of all, this court notes that at the time of the Board’s Decision, the 3^rd and 4^th applicants were minors. The Board did not make separate consideration for each of them. It could be that their claims were based on the same set of primary facts asserted by the 1^st applicant, but it is still wrong not to give consideration to their personal circumstances separately.

21.  As held by the Court of Appeal in Fabio Arlyn Timogan and Ors v Evan Ruth and Anor [2020] HKCA 971:-

“Even if the claims were based on the same set of primary facts, it would be an error of law if the decision-maker simply decided all the claims as if they were one composite claim without giving separate consideration to the personal circumstances of each claimant separately. It does not necessarily follow from the dismissal of the claim by a parent that the children’s claims could be dismissed without further consideration of their personal situations”.

22.  Thus, the Board has clearly committed an error of law when it failed to give separate consideration to the 3^rd and 4^th applicants’ claims in the Board’s Decision.

23.  In this regard, leave should be granted to the 3^rd and 4^th applicants to apply for judicial review in respect of the Board’s Decision concerning their own cases.

24.  With respect to the other applicants, namely the 1^st, 2^nd and 5^th applicants, their danger had been duly assessed but rejected by the Board. If they intend to challenge the Board’s finding of facts, it is not permissible in a judicial review.

25.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

26.  Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the 1^st, 2^nd, and 5^th applicants for the intended judicial review.

27.  In assessing the appeal by the applicants, the Board held a hearing on 19 June 2019. All the applicants were represented by the 1^st applicant. Thus, the applicants were given the chance to present their cases to the Board in person through the 1^st applicant.

28.  As can be seen from the Board’s Decision, the Board had asked the 1^st applicant extensive questions to clarify the matters that gave rise to their non-refoulement claim. The Board had also given detailed reasons as to why it found that there was no such person called Mayor Roger of Bicol (whom the applicants claimed to fear). Even if there were such a person, the Board found that he would long have vacated his office for at least 10 years at the time of the Board’s Decision and he would not have the power nor influence as a mayor.

29.  Further, the Board found that the alleged incident of the killing of the son of this person identified as Mayor Roger of Bicol happened in the 1990s. The 1^st applicant admitted that the incident must have happened over 19 years ago, there was no evidence whether Mayor Roger was still alive, he had never met Mayor Roger and he was only told by his father that Mayor Roger was after him.

30.  The Board thus found that the evidence of their claim was based on hearsay and surmise. The 1^st applicant admitted that the other incidents that he referred to as connected to Mayor Roger was through his own surmise and speculation. In fact, there was no evidence of any substance to support the allegation that the 1^st applicant and the other applicants were at risk of harm from a Mayor Roger of Bicol because the 1^st applicant’s father killed his son during a military action.

31.  Therefore, the Board did not accept the applicants’ claim that they were at risk of harm or death from Mayor Roger of Bicol.

32.  Moreover, the Board had considered all the country of origin information (“COI”) referred to in the Director’s Decision. It came to its independent conclusion that though there was room for improvement in the state of the police force in the Philippines, the continuing effort of the government for improvement of the force showed that reasonable state protection and assistance would be available to the applicants if needed.

33.  The Board did assess the applicants’ claims on all the applicable grounds under the USM but found that the applicants’ feared harm, risk of right to life, risk of torture and risk of persecution were unlikely to materialise. Hence, the Board concluded that the applicants were not entitled to non-refoulement protection on any of the applicable grounds under the USM.

34.  Although the Board did not make findings on the viability of internal relocation for the applicants, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicants have established that they qualify as refugees pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997). In other words, internal relocation only arises if the applicants have established a real risk of persecution in their home area (see Gardi v SSHD [2002] 1 WLR 2755).

35.  As it is the Board’s finding that the applicants had no real risk of any of the proscribed forms of harm, it is not necessary for the Board to further consider internal relocation.

36.  The finding of facts including the assessment of risk and COI was solely within the ambit of the Board. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion regarding the case for the 1^st, 2^nd and 5^th applicants.

37.  As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the 1^st, 2^nd and 5^th applicants have failed to establish such a claim and hence leave must be refused in respect of the 1^st, 2^nd and 5^th applicants.

38.  As aforesaid, the Board has clearly committed an error of law when it failed to give separate consideration to the 3^rd and 4^th applicants’ claims when they were minors at that time. The 3^rd and 4^th applicants’ cases are therefore reasonably arguable and have realistic prospects of success. Leave should be granted for the 3^rd and 4^th applicants to apply for judicial review in respect of the Board’s Decision.

Conclusion

39.  For reasons aforesaid, the Leave Application in respect of the 1^st, 2^nd and 5^th applicants’ application is dismissed. Leave is granted to the 3^rd and 4^th applicants to apply for judicial review in respect of the Board’s Decision.

40.  The 3^rd and 4^th applicants are directed to issue an originating summons for the intended judicial review on or before 31 December 2025 pursuant to Order 53, rule 5(5) of the Rules of the High Court.

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