CHALLOY CALVIN CAYNO v. TORTURE CLAIMS APPEAL BOARD

CACV 224/2024, [2025] HKCA 569

On appeal from [2024] HKCFI 1355

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 224 OF 2024

(ON APPEAL FROM HCAL NO 627 OF 2019)

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J U D G M E N T

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

1.  On 21 May 2024, Deputy High Court Judge Bruno Chan refused to grant leave for the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim[1]. The applicant filed a Notice of Appeal against the said decision on 4 June 2024.

2.  The applicant is a national of the Philippines. He last entered Hong Kong as a visitor on 4 September 2016 and subsequently overstayed. He surrendered to the Immigration Department on 4 October 2016. He lodged his non-refoulement claim on 26 January 2017. His claim was made on the basis that, if refouled, he would be harmed or killed by his enemy (a drug dealer or pusher) and his people because he worked as an undercover agent for the Philippine Drug Enforcement Agency (“PDEA”). He also feared he would be killed by the government of the Philippines because of the implementation of its anti-drug policy.

3.  The applicant was arrested by the police on 29 September 2017 for the offence of criminal damage.

The decision of the Director

4.  By a Notice of Decision dated 23 February 2018, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5].

5.  The Director has grave doubt about the applicant’s alleged identity as an undercover agent because the information provided by the applicant regarding his undercover job is not convincing. The Director also considered that the asserted ill-treatment inflicted upon the applicant by his enemy did not attain the requisite minimum level of severity. Besides, the Director found no evidence to show that his enemy and his people were acting in an official capacity and it was assessed that the dispute between the applicant and his enemy is purely private and personal. The Director further found that his assertion that he would be harmed or killed by the police or government officials was based on nothing but imagination. In addition, the Director assessed that state protection and internal relocation options are available to the applicant in his home country, which further lower or negate any perceived risk.

The decision of the Board

6.  The applicant attended the hearing of the appeal against the Director’s decision before the Board on 30 July 2018. The Board found the applicant’s evidence about the key aspects of his claims unreliable, as he failed to give satisfactory explanation for significant inconsistencies and vagueness in his evidence. The Board did not accept, among other things, that the applicant acted as an undercover agent for the PDEA as claimed and that he was ever threatened or harmed in anyway by his enemy or any other person because of his claimed work for the PDEA. The Board found that the applicant was not entitled to non-refoulement protection in Hong Kong on any of the applicable grounds and dismissed the appeal on 20 December 2018.

The intended judicial review

7.  The applicant filed a Form 86 and an affirmation on 5 March 2019 to seek leave to apply for judicial review against the decision of the Board. He stated in his supporting affirmation that he has well-founded fear of persecution in his own country, without putting forward any specific grounds for his intended challenge against the Board’s decision.

The judge’s decision

8.  The applicant attended the hearing before DHCJ Bruno Chan on 8 May 2024. The judge found that the applicant does not have any reasonably arguable basis to challenge the decision of the Board when he has not identified any error of law, irrationality or procedural unfairness in the process before the Board or in the Board’s decision. The judge was not satisfied that the applicant has any prospect of success in his proposed judicial review and dismissed the leave application on 21 May 2024.

Grounds of appeal

9.  In his Notice of Appeal, the applicant stated as his grounds of appeal there are errors in the application of law and facts of the case.

10.  In his written submissions, he repeated his background and the problems he faced in his home country.

11.  The applicant has submitted a written consent to dispose of the appeal on paper without an oral hearing.

Legal principles

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.

13.  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.

14.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

Analysis and disposition

15.  The applicant’s ground that there are errors in the application of law and facts of the case is just a bare assertion without any particulars or elaboration. He failed to identify any particular errors of law, failure to take account of relevant matters already placed before the court or any particular mistake in the judge’s decision. His written submission repeated his claim as an undercover agent that was rejected by the Director and the Board.

16.  For the above reasons, the appeal is wholly without merit. We therefore dismiss this appeal.