Dimnatang Aljunaidi Romero v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 763/2020

[2025] HKCFI 3519

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 763 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;

Order by Deputy High Court Judge (Non-Refoulement Claims) Lewis Law:

1.  The Applicant’s Form 86 be amended as per paragraph 2 of the “Observations for the Applicant” below; and

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

Observations for the Applicant:

1.The Applicant filed a Form 86 on 24 April 2020 (“Form 86”) and named the Torture Claim Appeal Board as the putative respondent. He failed to identify the date of the decision sought to be reviewed, and put down a date “April 23, 2020” in an inapt blank.  Be that as it may, the Applicant exhibited a copy of a decision made by the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB/NRCPO”) dated 16 April 2020 assessing his non-refoulement claim (“the Board Decision”) to his supporting affirmation.  In the oral hearing before this Court, he also confirmed that was the decision being challenged. 

2.The Board Decision was made pursuant to a notice of appeal/petition against the Director of Immigration (“DI”)’s tier-one decision dated 30 July 2019.  On my own motion, I amended the Form 86 to name the TCAB/NRCPO as the putative respondent, the Board Decision as the “decision in respect of which relief is sought” and the DI as a putative interested party.    

3.In the oral hearing, the Applicant reiterated he wanted to stay in Hong Kong because the conditions in the Philippines are not good; he had nothing to say in relation to the legality, rationality or procedural fairness of the Board Decision.    

4.I have reviewed the Board Decision, a copy of which can be viewed by the hyperlink below[1], vigorously.  The centrepiece of the Applicant’s non-refoulement claim was that he would be harmed or killed by (a) certain individuals connected to politics and/or (b) the family members of the victims of a killing incident if he was refouled to the Philippines.  He alleged that the killing incident was done by his half-blood brother in revenge of their father’s death, and thus the other side would go after him for further revenge.  The TCAB/NRCPO recorded that the Applicant had not provided sufficient evidence to support his claim and that his assertion of risk was unconvincing. In the relevant factual enquiry, the TCAB/NRCPO gave weight to the facts that the Applicant did not report any threat to the Police or other Government authorities in the Philippines, and he had travelled to various places in the country before coming to Hong Kong.  The Applicant actually came to Hong Kong once in January 2016, then went back to the Philippines and stayed there for over 2 years.  According to his claim, his alleged risk should have already emerged before this first visit to Hong Kong.  He later came to Hong Kong the second time on the strength of a Filipino passport in November 2018, and surrendered to the DI to make a non-refoulement claim shortly thereafter.  In these circumstances, the TCAB/NRCPO was obviously entitled to come to the view that the Applicant had failed to show any well-founded fear of being persecuted or any risk of being subject to torture or other violation of his fundamental human rights if he was refouled to the Philippines.  

5.It has been reiterated time and again that the primary responsibility for the factual assessment of whether any risk of ill-treatment exists lies with the TCAB/NRCPO.  In the absence of any errors of law, procedural unfairness or irrationality, the Court would not reopen their findings or make a determination on the case afresh.  The role of the Court in a judicial review is not to provide a further avenue of appeal (see Re Lakhwinder Singh [2018] HKCA 246). 

6.The leave application to apply for judicial review is thus dismissed.

Dated the 11^th day of August 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