Europa Bobby Jilongos v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3657/2019

[2025] HKCFI 1419

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3657 of 2019

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

Order by Deputy High Court Judge (Non-refoulement Claims) Teresa Wu:

1.   Form 86 be amended, naming only the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office and the Director of Immigration as the Putative Respondent and the Putative Interested Party respectively.

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

Observations for the Applicant:

Introduction

1.By Form 86 (“Form 86”) filed on 9 December 2019, the Applicant applies for leave to apply for judicial review (“the Leave Application”) of the decision of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (“the Board”) dated 29 November 2019 (“the Board’s Decision”) confirming the decision of the Director of Immigration (“the Director”) dated 27 November 2018 (“the Director’s Decision”), which rejected his non-refoulement claim on all applicable grounds (“the Grounds”) under the Unified Screening Mechanism (USM).

2.On my own motion, I have amended Form 86, correctly naming only the Board and the Director as the proposed respondent and the proposed interested party.

Background

3.The Applicant’s personal background, the incidents alleged by him in support of his non-refoulement claim that he would be harmed or killed by some assailants from “Seventh Day Adventist” and “Iglesia ni Cristo” in Philippines, and the immigration and procedural history, etc. can be found in the Board’s Decision.  It is not necessary for me to restate them, and where appropriate, reference can be made to the Board’s Decision, the hyperlink to which is included below[1].  Unless otherwise specified, I shall adopt the Board’s abbreviations and descriptions herein. 

Discussion

4.First of all, in view of the seriousness of the issues at hand, I have reminded myself to consider the decision of the Board with vigorous examination and anxious scrutiny, applying an enhanced standard: see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

5.As can be seen, the Board did not accept that there was, or there was reliable, evidence to show that the Religious People or Police had any personal interest in the Applicant, he would face any problems whatsoever in the Philippines, he had been subjected to any physical and/or mental suffering at all and/or of the requisite severity, and the state of the Philippines was unwilling to help him for a Convention reason (see §42 of the Board’s Decision).

6.The Board took the view, after considering the totality of evidence, that it was the Applicant’s “mere speculation” that the Religious People or Police would harm, much less kill him, if he were to return to the Philippines.  The Religious People only verbally threatened him.  He accepted that they were essentially people from the Home Area.  It was clear that they did not bear any personal grudge against him, as no one further pursued him after he left.  As to the Police, they detained him twice, believing that he was a terrorist.  However, they had released him on both occasions.  He was not further troubled afterwards and had been allowed to depart Philippines on those two occasions.

7.Based on these findings of fact and the application of the relevant law and legal principles, the Board was not satisfied that there was Persecution Risk (§§44-67, 90), BOR 2 Risk (§§68-69, 91), BOR 3 Risk (§§70-75, 92) or Torture Risk (§§76-88, 93) and had rejected the Applicant’s non-refoulement claim.    

8.The assessment of evidence, COI materials, risk of harm, state protection and viability of internal relocation were primarily within the province of the Board.  The Applicant is unable to show that there was any error of law, procedural unfairness or irrationality in the Board’s Decision.  He has failed to identify any grounds for judicial review in this case: see Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015 (22 December 2016) at §142.

9.The Applicant has also completely failed to meet the required standard of providing the Court with all relevant information.  An applicant for leave is obligated to make full and frank disclosure of not only all material facts known to him but also the potential legal answers to his claims: see Re Leung Kwok Hung, HCAL 83/2012 (28 September 2012) at §35.  It is insufficient for him to merely exhibit a copy of the Board’s Decision in his supporting affirmation, hoping that the Court may step in to adjudicate the matter afresh in the absence of any valid public law grounds.  The fact that he is acting in person does not relieve him of such duty nor provide answer for his non-compliance. 

10.Unless there are sufficient public law errors or grounds, the Court should not usurp the role of the Board or intervene by way of judicial review.  As has been repeatedly emphasized in similar cases, the Court’s role in a judicial review is not to provide a further avenue of appeal: 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.

11.For these reasons, the Applicant’s intended challenge of the Board’s Decision is plainly not reasonably arguable with any realistic prospects of success: see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676 and no leave should be granted.  The requirement for leave to apply for judicial review operates to filter out unarguable challenges: see section 21K(3) of the High Court Ordinance, Cap. 4 and Order 53 rule 3(1) of the Rules of the High Court, Cap. 4A. 

Conclusion

12.I make an order that Form 86 be amended as described and the Leave Application be dismissed.

Dated the 17^thday of April 2025

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