FABRE SHANNON JOHN TENESTRANTE v. TORTURE CLAIMS APPEAL BOARD

HCAL 341/2022

[2026] HKCFI 2623

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 341 OF 2022

Application for leave to apply for judicial review

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

Following:

1.   On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the name of the putative interested party be amended to “Director of Immigration”.

2.   The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated and filed on 13 May 2022, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 20 January 2022 (“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/2022/HCAL000341_2022_files/the_Board's_Decision.pdf

2.  The Board found that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”).  Accordingly, the Board rejected the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 29 December 2020 and confirmed the same, which rejected the applicant’s non-refoulement claim.

Amendments

3.  The applicant named the Board and Immigration Department as both the putative respondents and the putative interested parties in Form 86.

4.  In fact, only the Board should be the putative respondent and the Director should be the putative interested party.

5.  Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party to “Director of Immigration”.

Late application

6.  By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made.

7.  However, the applicant filed his Form 86 on 13 May 2022, which was 3 months and 23 days after the Board’s Decision (made on 20 January 2022).  The applicant was hence late for 23 days in making the Leave Application.

8.  This court has to consider whether the time for the applicant to make the Leave Application should be extended taking into account of the criteria laid down in AW v Director of Immigration [2016] 2 HKC 393, which are:

(i)   the length of the delay;

(ii)   the reason for the delay;

(iii)   the merits of the intended application; and

(iv)    any prejudice to the putative respondent and to public administration.

9.  The applicant did not make any application for extension of time and provided no explanation for the delay in making the Leave Application. 

10.  A delay of 23 days is not very substantial, but there is simply no reason for this court to grant an extension of time for the applicant to file the Leave Application when no explanation was given.  More importantly, there is no merits in the Leave Application at all as discussed below.

11.  Having considered the above criteria, this court is not prepared to grant any extension of time to the applicant to file the Leave Application, even if an application for extension of time was made.  The Leave Application can therefore be dismissed on the ground of being made out of time alone.

12.  However, for the sake of completeness, this court will consider the merits of the Leave Application as discussed below.

The applicant’s case

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

14.  In sum, the applicant claimed for non-refoulement protection because if refouled to the Philippines, he would be harmed or killed by a person called Rogelio Agre (“RA”), who was the local leader of the Liberal Party and the Barangay captain in the applicant’s home village, as the applicant had seen the people of the Liberty Party buying votes from the villagers in the 2017 election for the mayor of Mahinog and reported the matter to the police.

Disposal on paper

15.  The applicant did not request for an oral hearing of the Leave Application.  This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court.  Thus, the Leave Application is dealt with on paper.

Grounds for judicial review

16.  The applicant is 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).

17.  The applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affidavit dated 13 May 2022.  He merely stated in his affidavit that he wanted to reject and review the Board’s Decision as they disregarded his dangerous situation.

Discussion

18.  First of all, the applicant’s alleged danger in his country had already been assessed but rejected by the Board.  If he intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.

19.  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).

20.  Thus, despite the fact that the applicant did not advance any valid ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid.

21.  In assessing the appeal/petition by the applicant, the Board held an oral hearing on 27 April 2021.  The applicant was thus given the chance to present his case to the Board in person. 

22.  As can be seen from the Board’s Decision, the Board found that the applicant’s case was based on his mere assertion that he infuriated RA, leader of the Liberal Party in Mahinog, ie their home town, because the applicant reported to the police that the people of the Liberal party were buying votes from the voters.  RA was elected as the mayor of Mahinog in 2017.  When RA found out that the applicant was the informer, 3 people, whom the applicant believed were sent by RA, attacked him in the home village.

23.  The Board found the applicant to be an unreliable witness.  The applicant’s claims, including (1) his purported encounter with RA and the attackers; (2) that he eye-witnessed the vote rigging in the 2017 election; (3) that there were 10 other people who witnessed the buying of votes; (4) that his evidence in relation to his report to the police about the alleged vote rigging; (5) that he had been attacked; and (6) his assumption that the attack he encountered was instructed by RA, were all rejected.  The Board found that the applicant fabricated those evidence in an attempt to fortify his protection claim.

24.  The applicant in fact agreed at the Board’s hearing that in the wake of RA’s renowned status, there was no need for RA to buy the votes and it did not come to a surprise that RA could have won the election without buying votes.  The applicant also admitted that it was just his guess that RA had control over the police because RA was rich and powerful.  The applicant had no evidence to support his allegation of corruption against the authorities and police in his home town.

25.  The Board discussed in paragraphs 53 to 63 of the Board’s Decision the availability of state protection in the Philippines for the applicant.  The Board found that while the Philippines police might be ineffective and unhelpful to a certain extent, state protection was available to the applicant.

26.  Moreover, the Board found that the applicant, being young with education to college level and some work experience as a waiter, could relocate and start his life afresh when he was refouled to the Philippines to avoid the threat from RA, if the threat existed at all.

27.  Thus, the Board found that the applicant was not at a real risk of being tortured, ill-treated, persecuted or arbitrarily deprived of his life upon refoulement.  The Board found that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM.

28.  The finding of facts relating to a non-refoulement claim, including the assessment of evidence and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition.  This court finds nothing wrong or unreasonable in the way the Board reached its decision.

29.  Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof.  The Board also correctly identified the issues and observed a very high standard of fairness.  This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision. 

30.  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 applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

31.  For reasons aforesaid, the Leave Application is dismissed for being made out of time and also for lack of merits.

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