LEAL CRISTIAN BADUYEN v. TORTURE CLAIMS APPEAL BOARD

HCAL 1576/2020

[2025] HKCFI 3924

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1576 OF 2020

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 / the Applicant being absent in open court;

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 28-year-old national of the Philippines who arrived in Hong Kong on 27 February 2019 as a visitor with permission to remain as such up to 13 March 2019 when he did not depart and instead overstayed, and more than 5 months later on 26 August 2019 he surrendered to the Immigration Department and raised a non‑refoulement claim for protection on the basis that if he returned to the Philippines he would be harmed or killed by the husband of his girlfriend over their affair. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Alicia, Isabela, the Philippines. After leaving school he worked as a driver in his home district to make his living.

3.  In late 2014 he started dating a girl whom he understood as being married but separated from her husband, and soon they cohabited together in Tabuk, Kalinga.

4.  However, one day in October 2017 his girlfriend’s husband together with several men came to their home and accused the Applicant of having an affair with his wife and started to beat him with metal rods that the Applicant suffered cuts and bruises all over his body until his neighbors came to intervene, and before leaving his girlfriend’s husband threatened that next time he would kill both the Applicant and his girlfriend.

5.  As a result the Applicant and his girlfriend became fearful for their life and fled to hide in his grandmother’s place before moving on to stay in various homes of his other relatives in Manila, and on 27 February 2019 he together with his girlfriend departed the Philippines for Hong Kong where he subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 26 November 2019 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 10 January 2020 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

7.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his girlfriend’s husband upon his return to the Philippines as low due to the low intensity and frequency of past ill-treatment from his girlfriend’s husband, that there is no evidence of any real intention of his girlfriend’s husband to seriously harm or kill him other than angry words and empty threats, that in any event it was a private and personal dispute between him and his girlfriend’s husband only without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in the Philippines with a large population of 105 million people spread across a vast territory of more than 300,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home district in large cities such as Manila where he had stayed before without incidents and where it would be difficult if not impossible for anyone to locate him.

8.  On 20 January 2020 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which the Board did not find necessary to hold any oral hearing and proceeded to deal with it in the absence of the Applicant and on the basis of the material and information provided earlier by him to the Director and available in the hearing bundle before the Board. On 29 June 2020 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision[1] the Board accepted the Applicant’s claim of fear of harm from his girlfriend’s husband over their affair but found no reliable evidence of any real intention of his girlfriend’s husband to seriously harm or kill him, and that in any event it was a private personal dispute between him and his girlfriend’s husband only without any official involvement that state or police protection would be available to the Applicant upon his return to the Philippines as well as reasonable internal relocation alternatives for him to move safely to other parts of the country away from his home district without any risk of being located by anyone that his claim for non-refoulement protection failed on all applicable grounds.

10.  On 28 July 2020 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or his supporting affirmation of the same date other than just a bare assertion that the decision disregarded his dangerous situation in his home country but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application. As such, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge of the Board’s decision.

11.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

12.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in his claim if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of the Philippines, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

13.  In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

14.  For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his 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