BANTIDING RUBEN JR PANDUYOS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 64/2025, [2025] HKCA 433

On Appeal From [2025] HKCFI 426

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 64 OF 2025

(ON APPEAL FROM HCAL NO 2396 OF 2019)

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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 Levy (“Judge”) on 27 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 16 August 2019. In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 21 June 2019 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of the Philippines born in 1976. He last entered Hong Kong as a visitor on 22 March 2012 and was permitted to stay until 5 April 2012. However, the applicant overstayed and was eventually arrested by the police on 20 December 2012. He raised a claim for non-refoulement protection on 10 June 2014 and submitted his non-refoulement claim form dated 30 May 2019 to the Immigration Department. The applicant’s claim was made on the basis that if he returned to the Philippines, Josephine Rullan (“Josephine”) would harm or kill him due to the settlement paid by her arising from the motorcycles collision accident between the applicant’s parents and her son. The factual background of the applicant’s claim was set out at [12] to [21] of the Board’s decision.

3.  By notice of decision dated 21 June 2019, 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. By letter dated 2 July 2019, the applicant requested for his appeal to be determined without an oral hearing. In reply to the Board’s letter dated 10 July 2019, the applicant confirmed that he wanted the Board to consider and assess his appeal/petition on the papers as soon as practicable by letter dated 12 July 2019. Therefore, the Board acceded to the applicant’s request and made its determination on the provided information without holding an oral hearing.

5.  On the totality of the evidence, the Board did not accept the applicant’s claim of being threatened by Josephine, or otherwise ill-treated, in the Philippines. It found that the applicant’s evidence was largely based on speculation and the facts relied upon were unreliable and questionable. The Board did not find the applicant’s claim to be credible, because it found, inter alia, that the applicant’s belief of threat relating to Josephine was speculative only, that the applicant had stayed in his home village until his departure to Hong Kong for more than one month without meeting any significant events, that it was not reasonable for Josephine to want to harm him if she was a very rich person who wanted to reach agreement for final compensation settlement that had been paid in full already, that he and his family members had not experienced any harm or harassment by anyone at any time in the Philippines, that more than 7 years had passed since the settlement so it was unlikely that Josephine would still have any interest in the applicant, that he did not experience any difficulty when leaving the Philippines to Hong Kong, and that Josephine was not a state agent. Against the applicant’s credibility, the Board also found that the applicant did not apply for protection when he first arrived in Hong Kong in March 2012 but only raised a torture claim in June 2014 after he was arrested in December 2012.

6.  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 the Board rejected the applicant’s claim of risk of harm from Josephine based on its findings of facts. The Board further found that Josephine was not a state agent, that reasonable state protection was readily available to the applicant and that internal relocation to Manila or Quezon City would be available and reasonable to him as well.

7.  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 16 August 2019, the Board dismissed the applicant’s appeal in respect of all the applicable grounds and confirmed the Director’s decision.

The Judge’s decision in the court below

8.  On 19 August 2019, the applicant filed a Form 86, which was dated 24 July 2019, to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision. A one-page list of grounds was attached to the Form 86. In short, the grounds included allegations that the decisions of the Director and the Board were not reasonable and fair, the Director failed to give proper weight to the presence of state acquiescence, the Director and the Board failed to give weight to the applicant’s personal experience and relevant country of origin information, the Director and the Board failed to consider the corruption and incompetency of the state, the Board was unfair in the assessment of the applicant’s explanations, and the Board made its ruling based on findings that ought to have supported the appeal. In the accompanying affirmation, also dated 24 July 2019, the applicant simply stated that he was not in possession of any documents but would be able to submit documents upon his release.

9.  Upon the applicant’s request, an oral hearing was held on 19 December 2024. At the hearing, the applicant clarified and confirmed that he had personally signed the Form 86 and the affirmation, but he did not acknowledge nor adopt the grounds set out in Form 86. Upon the Judge’s enquiry, the applicant confirmed that he had nothing to say about what error the Board had made and that he had no further documents to submit in support of his application. The Judge considered the application on the basis of the documents and the submissions made by the applicant at the hearing. On 27 January 2025, the Judge issued her decision, dismissing the leave application for judicial review. The reasons were set out in [9] to [15] of the Form CALL-1 as follows:

“ 9. As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see 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.

10. The applicant’s Form 86 as well as his supporting affirmation were dated 24 July 2019, which was before the issuance of the Board’s Decision. At the hearing, this court asked the applicant to clarify this anomaly. The applicant was shown these two documents that he had signed and was particularly asked to look at the one page document entitled “Grounds in which Relief is sought” annexed to the Form 86. After he had looked at them, the applicant informed this court that someone came to see him while he was detained in custody. He was asked to sign on these papers. He had no knowledge at all as to the one page annexure. It became obvious that the grounds set out in the annexure to the Form 86 were not prepared with his knowledge or confirmation. The applicant had not adopted them. Since the applicant was acting in person, this court asked him what mistake or error he believed the Board had made. Further, as the applicant had deposed in his supporting affirmation that ‘…I am presently not in possession of any of my documents. I would be in position to submit rest of the documents upon my release’, I asked him whether he had more documents to submit in support of the Leave Application as he had been released for some time.

11. The applicant replied that he did not know what error the Board had made. He had nothing to say and no documents to submit in support of his Leave Application. Since the applicant had no knowledge of the grounds stated in the Leave Application and had not adopted them at the hearing, the written grounds will be disregarded. In the circumstances, the applicant was unable to put forth any grounds to challenge the Board’s Decision. He did not say on what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.

12. The Board’s Decision was arrived at after having examined the applicant’s evidence in great detail. It found that the applicant’s account did not amount to any threat or risk. Even if there were any threat, the Board found that the applicant would have the option of internal relocation. These are findings of fact, which the court in a judicial review will not interfere with.

13. Having rigorously examined the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to all the grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness in the Decisions of the Director and the Board. I find that it was perfectly open to the Board to come to its conclusion that the applicant failed to discharge his burden of proving the asserted fears and risks.

14. For these reasons, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

15. The Leave Application be dismissed.”

Appeal to this Court

10.  On 10 February 2025, the applicant filed his Notice of Appeal against the Judge’s decision. His stated ground of appeal was that he did not want to return home yet because his life was still in danger.

11.  The applicant has given consent in writing for this appeal to be disposed of on paper without an oral hearing, and we shall accordingly determine the appeal on the basis of the available documents and materials.

12.  The applicant has lodged written submission in which he repeated the basic factual allegations relied on for his non-refoulement claim. He also stated that the Director, the Board and the Judge did not give him any chance to speak and voice out his problem and the Judge did not find any problem with the Board’s decision.

Discussion

13.  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.

14.  In the present case, the Board found that there was no real risk of harm upon refoulement as alleged, because it found the applicant’s evidence to be unreliable and incredible. Further, the Board found that state protection and internal relocation would be available to the applicant in any event. 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. As for the ground that the applicant was not given an opportunity to voice his arguments before the relevant authorities, the applicant requested not to have an oral hearing before the Board. He was free to make submissions at the hearing before the Judge. This complaint therefore has no substance.

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. We are not satisfied that there is any error in the Judge’s decision.

16.  The applicant’s appeal is accordingly dismissed.