BATOON DANTE BORCE v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1142/2021

[2026] HKCFI 3001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1142 of 2021

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

The application for leave to apply for judicial review be dismissed. 

Observations for the Applicant:

1.  By a Form 86 filed on 13 August 2021, the Applicant sought leave for judicial review of a decision dated 2 July 2021 of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (respectively “the Board” and “the Board’s Decision”).  The Board’s Decision was made after the Board’s hearing on 10 June 2021 of the Applicant’s appeal/petition against the Director of Immigration (“DI”)’s first tier decision dated 7 May 2019.  A copy of the Board’s Decision can be seen by the following hyperlink[1]. 

2.  The Applicant is a Filipino national.  He sought non-refoulement claim because he had an intimate relationship with a woman named Jovy, and this Jovy’s husband had threatened to kill him.  The Applicant said Jovy’s husband was a Senior Superintendent of Police.  Killers were sent but the Applicant managed to hide himself when they came to his residence.  After hiding in Manila for a while, he fled to Hong Kong. 

3.  After an intense factual inquiry, the Board found the inconsistencies in the Applicant’s evidence to be glaring and there was no reasonable explanation for the same.  The Board found no truth in the Applicant’s assertions, rejected the same as fabrications and thus found no applicable ground being made out. 

4.  Furthermore, the Board assessed that although the Filipino Police had certain inadequacies, there was country information showing that the Government had been addressing the problems.  There would be adequate State protection upon the Applicant’s return to address his perceived risk of ill-treatment. 

5.  In the Applicant’s Form 86, he stated the following grounds of judicial review:

(1)   the Board had unlawfully fettered its discretion by refusing Applicant’s appeal on the grounds that he did not satisfy the requirement;

(2)   the Board’s adjudicator acted in a procedurally unfair manner in dealing with appeal/petition;

(3)   the Board’s Decision was unreasonable or irrational in the public law sense or was a result of procedural errors or unfairness;

(4)   the Board failed to meet the greater care and duty owed to a self-represented claimant. 

6.  In both the Form 86 and supporting affirmation, the Applicant said the Board did not give him a “fair opportunity to keep forward his submissions in an oral hearing”, nor was he “invited to submit written submissions”.  The Applicant also complained that the Board had significantly relied on news which were not officially recognized, simply hearsay, fairly outdated and lacked credible source, which resulted in a “groundless speculation” that it was safe for him to go back to the Philippines. 

7.  On ground (1), I do not see how the Board had fettered its discretion.  The Board conducted a hearing, gave a reasoned judgment and did not dictate the outcome before giving the Applicant a chance to bring out his case.  There is no substance in this ground. 

8.  On ground (2), the Applicant just vaguely said the Board was procedurally unfair and did not give him chance to make submissions.  According to the Board’s Decision, a hearing was held (a fact the Applicant also orally confirmed before this Court) and it appears the Board did engage the facts of the case and the points made by the Applicant.  Without any particulars as to what the Applicant had wanted to say but was not allowed to say during the hearing (e.g. by reference to a transcript of the Board’s hearing showing any interjection), this Court cannot possibly come to a conclusion that the Board’s procedure was unfair out of the blue.  The Board had access to the Applicant’s non-refoulement claim form and the record of interview taken by the DI.  There was also no sign that if the Applicant had wanted to lodge any further submissions in writing for his appeal/petition, he would be inhibited by the Board from doing so.  There is no substance in ground (2). 

9.  On ground (3), in relation to both irrationality and the use of country information, it should be remembered that the Board found the Applicant’s claim incredible.  Non-refoulement protection was denied primarily on that basis and in such situation, whether and how country information was assessed assumed no or less significance in this case.  In any event, the Board did consider the country information cited in DI’s first tier decision, including sources such as the Department of State’s report of the United States Government.  While it might be more desirable for the information to be updated to the time of the appeal/petition, the time gap between the information and the process before the Board was not so significant to the extent that the reference was problematic. 

10.  Overall speaking, in view of the inconsistencies highlighted in, for example, paragraphs 43-48 of the Board’s Decision, I am unable to say it is reasonably arguable that the Board’s credibility finding was irrational.  There was evidential basis for the Board to come to its conclusion. 

11.  On ground (4), the Applicant did not particularise the duty owed by the Board to him and how it was breached.  I am unable to find any indication that the Board had failed to perform its duty in an appropriate manner. 

12.  None of the ground is made out.  I have also considered the Board’s Decision vigorously, but am unable to detect any reasonable argument that it should be quashed.  This application for leave to apply for leave is therefore dismissed. 

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