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

CACV 45/2025, [2025] HKCA 811

On Appeal From [2025] HKCFI 403

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 45 OF 2025

(ON APPEAL FROM HCAL NO 894 OF 2023)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Reuden Lai (“Judge”) on 22 January 2025[1] refusing to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 5 June 2023.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 5 November 2021 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of the Philippines.  He last entered Hong Kong as a visitor on 16 November 2019 and was permitted to remain until 30 November 2019.  He overstayed and subsequently surrendered to the Immigration Department on 24 March 2021.  The applicant lodged a non-refoulement claim by way of written representation on 16 April 2021 and later submitted his non-refoulement claim form on 7 October 2021.  The applicant’s claim was made on the basis that if he returned to the Philippines, the members of the drug trafficking syndicate (that he used to work for) would harm or kill him as he stopped trafficking drugs for the syndicate.  The factual background of the applicant’s claim was set out at [21] to [38] of the Board’s decision.

3.  By notice of decision dated 5 November 2021, the Director assessed the applicant’s claim in relation to all applicable risks and determined it against him.  Those grounds are BOR 3 risk,[2] persecution risk,[3] torture risk[4] and BOR 2 risk.[5]

4.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 29 November 2022, during which the applicant elected not to give oral evidence.  In consideration of all the available documents and country of origin information, the Board found that the applicant’s story was vague, lacked details and was riddled with inconsistencies in his knowledge of the background of the syndicate and the details of the incidents in which he believed the people threatening and looking for him were from the syndicate.

5.  Despite these shortcomings, the Board proceeded to consider the risk of harm faced by the applicant if he was refouled to the Philippines.  It found there was in fact no real risk of harm if the applicant returned to the Philippines, because on the applicant’s own case he was never physically harmed or assaulted and that he did not know who made the threatening messages, the physical and mental harm did not attain a minimum level of severity, there was no state involvement and no interference from authorities at immigration border control when he left the country, reasonable state protection would be available to the applicant, and internal relocation to big cities, such as Davao or Manila, would be viable.

6.  In conclusion, the Board held that there was no real risk of harm for the applicant in the event of refoulement to the Philippines.  By its written decision dated 5 June 2023, the Board dismissed the applicant’s appeal and confirmed the Director’s decision.

The Judge’s decision in the court below

7.  On 8 June 2023, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision dated 5 June 2023.  He did not specify any ground for judicial review in the Form 86 or in the accompanying affirmation.  In the latter, he simply annexed the Board’s decision.

8.  The Judge considered the application on the basis of the documents and the submissions of the applicant at the hearing scheduled on 30 December 2024.  On 22 January 2025, the Judge issued his decision, refusing to grant leave to apply for judicial review.  The reasons were set out in [26] to [42] of the Form CALL-1 as follows:

“ 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.

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.”

Appeal to this Court

9.  On 4 February 2025, the applicant filed his Notice of Appeal against the Judge’s decision.  His stated grounds of appeal were, essentially, that there was a lack of language and legal assistance that amounted to unfairness, that the Judge failed to consider his individual circumstances such as the photo evidence submitted, that the Court did not consider his grounds, and that there are no avenues to appeal against a decision finding against his credibility. 

10.  The applicant has lodged written submissions in which he mainly states that there is a lack of legal and language assistance at different stages of his claim and that the Board did not consider his photos and letter.

11.  At the hearing, the applicant stated he had nothing further to add.

Discussion

12.  In assessing the merits of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  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.  In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

13.  In the present case, the Board found that there was no real risk of harm upon refoulement as alleged, because it did not find the applicant’s claim to be credible and, even if the Board accepted the applicant’s story, the physical and mental harm did not attain a minimum level of severity, there was no state involvement, reasonable state protection would be available to the applicant, and internal relocation to big cities, such as Davao or Manila, would be viable.  These are findings of fact open to the Board based on the evidence it received and for the reasons it gave.  The applicant has failed to show any reasonably arguable public law error in relation to the Board’s decision.

14.  As to the recurring complaint about the lack of legal and language assistance at various stages of the applicant’s claim, it has been repeatedly stated by the Court of Appeal that as a matter of law, it is not the case that a non-refoulement claimant is entitled to free legal representation at all stages of the process and that the high standard of fairness required by law does not entail an interpretation service being made available to an applicant all the time as he desires: Re Zunariyah [2018] HKCA 14 at [18]; Re Zahid Abbas [2018] HKCA 15 at [11] and Re Tariq Farhan [2018] HKCA 17 at [11].  We note that all the court documents filed in this appeal and in the court below were in English.  It is thus clear that either the applicant was himself conversant with the English language or he had access to language assistance of his own if he found it necessary.  Further, we note that the applicant was legally represented in the initial preparation of his case by the completion of the non-refoulement claim form and screening interview with the Director, which formed the basis of his present claim.  Thus, we do not find the non-availability of legal representation or language assistance in the processes thereafter to amount to any procedural unfairness.

15.  Equally, the applicant has not been able to demonstrate any error in the decision of the Judge or advance any viable ground of appeal against the Judge’s decision.  Contrary to the applicant’s submissions that the Judge had not considered his photo evidence and accompanying letter, the Judge had, in fact, thoroughly considered and analysed these documents in [30] to [37] of the Form CALL-1.  We are not satisfied that there is any error in the Judge’s decision.

16.  The applicant’s appeal is accordingly dismissed.