Tagub Winfred Magtoto v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 549/2024, [2025] HKCA 395

On Appeal from [2024] HKCFI 3303

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 549 OF 2024

(ON APPEAL FROM HCAL NO 2217 OF 2019)

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

1.This is the Applicant’s appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 10 December 2024 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claim Petition Office (“the Board”) dated 29 July 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 11 April 2017.

BACKGROUND

2.The Applicant is a national of the Philippines. He last entered Hong Kong as a visitor on 22 October 2011, and had overstayed since 28 October 2011. He was arrested by the police on 18 December 2013. On 20 December 2013, he lodged a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by the Muslim extremists in Mindanao, the Philippines, because he supported and worked as one of the bodyguards for a Christian mayor of Mindanao who was assassinated by a Muslim in 2006 or 2007. Details of the Applicant’s claim have been summarised by the Judge at §§4-6 of his Judgment dated 10 December 2024.

3.By a Notice of Decision dated 15 April 2015 (“the Director’s Decision”), the Director dismissed the Applicant’s non-refoulement claim with reference to the following risks: risk of torture[1], BOR 3 risk[2], and persecution risk[3].

4.On 27 April 2015, the Applicant appealed the Director’s Decision to the Board. On 6 February 2017, the Board dismissed the Applicant’s appeal and confirmed the Director’s Decision (“the Board’s 1^st Decision”). The Board’s reasons for its 1^st Decision were summarised by the Judge at §§12 and 13 of the Judgment, as follows:

“[12] The Board found the account given by the [Applicant] unconvincing and lacked credibility [36]. Although it was accepted that the mayor was assassinated possibly by a Muslim, the Board was not satisfied that the [Applicant] had ever been threatened or targeted by the Mindanao Muslims [37]. The Board considered that the [Applicant] came to Hong Kong simply to visit his wife and did not find him to be at risk upon return to the Philippines [38]. His delay in applying for non-refoulement protection also damaged his credibility [39]-[40].

[13] The Board found the [Applicant’s] claim was based on bare assertions/speculation and it was not accepted that he would face any risk of harm upon return to the Philippines [42]-[44]. Based on such findings, the Board rejected the [Applicant’s] claim on Torture risk, BOR 3 risk and Persecution risk [21]-[28], [45]-[48].”

5.The Director, by a letter dated 24 March 2017, invited the Applicant to submit additional facts which might be relevant to his non-refoulement claim with reference to BOR 2 risk[4]. In the absence of any response from the Applicant, the Director, by a Notice of Further Decision dated 11 April 2017, rejected the Applicant’s claim with reference to BOR 2 risk (“the Director’s Further Decision”).

6.The Applicant appealed the Director’s Further Decision to the Board. On 29 July 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Further Decision (“the Board’s 2^nd Decision”). The Board’s reasons for its 2^nd Decision were summarised by the Judge at §16 of his Judgment, as follows:

“Based on the findings in the Board’s 1^st Decision, the Board considered that there was no evidence indicating that the [Applicant’s] right to life would be at risk upon return to the Philippines [14]-[19]. His appeal was therefore dismissed and the Director’s 2^nd Decision was confirmed…”

THE JUDGMENT

7.On 5 August 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s 2^nd Decision. In his supporting affirmation of the same date, the Applicant raised various grounds of intended challenge, which the Judge summarised at §18 of the Judgment, as follows:

“(1) Procedural impropriety: he was not informed that the country of origin information (‘COI’) would be relied upon in the assessment of his case; the COI was cherry picked to his detriment;

(2) Irrationality: failed to consider state acquiescence.

(3) Unreasonableness: the assessment was based on false logic as the threat of the extremists of killing him if he returns to his country was not properly assessed. The extremists are powerful and aggressive.”

8.On 10 December 2024, the Judge gave the Judgment refusing to grant leave to apply for judicial review, for the following reasons:

“[19] The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s [2^nd] Decision on the [Applicant’s] appeal. The Court will not usurp the fact-finding power vested in the Director and the Board…

[20] The Court will bear in mind that the Board’s [2^nd] Decision should be examined with rigorous examination and anxious scrutiny. Before me, the [Applicant] said he has disclosed his facts to the Board. But the Board did not consider the evidence well enough.

…

[22] The Board, for the reasons given above, found that the [Applicant’s] claimed risks were unfounded. Those grounds under paragraph 18 are his bare assertions and general comments without any evidence in support. They are not valid to challenge the Board’s [2^nd] Decision.

[23] There is no reason that the Court should interfere with the Board’s finding of the facts.

[24] The [Applicant] fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s [2^nd] Decision.”

THIS APPEAL

9.In his Notice of Appeal filed on 16 December 2024, the Applicant merely repeated that he could not go back to his home country.

10.The Applicant has failed to lodge any written submissions in support of his appeal contrary to the directions given by the Registrar of Civil Appeals on 17 March 2025. Accordingly, he is deemed to have waived the right to have an oral hearing of his appeal and elected to have his appeal disposed of on paper. Having considered the documents before us, we consider that it is appropriate to deal with the Applicant’s appeal on paper without an oral hearing.

DISCUSSION

11.In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would 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’s decision, the appeal should be dismissed. The Court of Appeal’s role is not to examine the Board’s decision afresh as if it was a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(6)).

12.Further, the assessment of evidence, country of origin information, 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: Re Kartini [2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the Board’s 2^nd Decision is shown in the present case.

13.The Applicant has failed to identify or show any error in the Judgment refusing to grant leave to apply for judicial review, or raise any viable ground of appeal against the Order.

14.The Applicant’s appeal has no merits, and is dismissed.

The Applicant, acting in person