Case Document

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HCAL 3509/2019

[2025] HKCFI 4984

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3509 OF 2019

BETWEEN
	Rebuta Rodolfo Cabasag	Applicant
	and
	Torture Claims Appeal Board	Putative
		Respondent
	and
	Director of Immigration	Putative
		Interested Party

Application for leave to apply for judicial review

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

Following:

consideration of the documents only; or

consideration of the documents and the applicant being absent in open court;

Order by Deputy High Court Judge Michael WONG:

1. On this court’s own motion, the name of applicant be amended to “Rebuta Rodolfo Cabasag”, the name of the putative respondent be amended to “Torture Claims Appeal Board”, “Director of Immigration” be added as the putative interested party and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 20 November 2019”.

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 26 November 2019, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision dated 20 November 2019.

2.The Torture Claims Appeal Board (“the Board”) made a decision dated 20 November 2019 (“the Board’s Decision”) regarding the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 19 October 2018 (“the Director’s Decision”). Thus, it is clear that the applicant was referring to the Board’s Decision in the Leave Application. The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003509_2019_files/the_Board's_Decision.pdf

3.The Board found that the applicant’s claims for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed the applicant’s appeal/petition and confirmed the Director’s Decision.

Amendments

4.In Form 86, the applicant did not state his full name correctly. He also failed to properly name the putative respondent and did not name any interested party, when the putative respondent should be the Board and the putative interested party should be the Director.

5.Thus, on this court’s own motion, the name of the applicant is amended to “Rebuta Rodolfo Cabasag”, the name of the putative respondent is amended to “Torture Claims Appeal Board”, and “Director of Immigration” is added as the putative interested party.

6.As mentioned, the decision in respect of which relief is sought in the Leave Application should be the Board’s Decision, and it is so amended on this court’s own motion.

The applicant’s case

7.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.

8.In sum, the applicant claimed for non-refoulement protection because he feared that if refouled to the Philippines, he would be harmed or killed by either the Davao Death Squad (“DDS”) or drug syndicates for being involved in the discovery of cocaine bricks in a container port in Davao City.

Oral hearing

9.The applicant requested for an oral hearing of the Leave Application. However, he was absent at the hearing on 28 August 2025.

10.As held in Re Abdus Salam [2019] HKCA 1091, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application. The correct approach is to treat the applicant as having withdrawn the request for a hearing by reason of the absence at the hearing, and to proceed to determine the leave application on its merits.

11.Thus, this court will proceed to consider the merits of the Leave Application based on the written materials before this court.

Grounds for judicial review

12.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).

13.The applicant did not advance any ground for the intended judicial review in Form 86, nor in his supporting affidavit dated 26 November 2019. The applicant merely stated in Form 86 and the affidavit that he disagreed with the decision of the Immigration Department.

Discussion

14.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).

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

16.In assessing the appeal by the applicant, the Board arranged an oral hearing on 18 April 2019 and the applicant was present. Thus, the applicant did have the opportunity to present his case to the Board in person.

17.As can be seen from the Board’s Decision, the Board gave very detailed analysis and reasoning in rejecting the applicant’s claims. The applicant claimed that by reason of discovering the bricks of cocaine being suspended to the ceiling of a container while he was working for the Sumifru Company as a container checker, he was in danger of being killed or subjected to grave harm by the drug syndicate who had lost this shipment, or the DDS on suspicion that he had stolen some of the bricks. However, the Board found that the applicant failed to prove the centerpiece of his story as many aspects of his claim were lacking in detail, not supported by any documentary evidence, implausible and/or simply defied logic.

18.The Board was not even convinced that the applicant worked as a container checker in the Sumifru Company and that the applicant was ever involved in the incident where a number of cocaine bricks were found suspended to the ceiling of a container. The Board was also not convinced that the applicant was ever investigated or suspected of having taken some of the missing cocaine bricks. Despite claiming that he was a staff in the Sumifru Company who discovered the bricks of cocaine, none of the video footages that the applicant had referred the Board to consider made any reference to him. The number of cocaine bricks he claimed to have been discovered/seized in the incident was not consistent with the contemporaneous news reports that he had submitted to the Board.

19.The Board was not convinced that the applicant was listed in the DDS either. The applicant had produced no documentary evidence to substantiate his claim and his own account was at best hearsay from an alleged colleague who had no connection with the DDS whatsoever. Further, the Board was not convinced that the applicant was being stalked by suspicious people.

20.Thus, the Board found the risk that the applicant would be killed or harmed by DDS or the drug syndicates if he were to be refouled to the Philippines was low.

21.Further, even if the Board accepted the applicant’s version of events, there was nothing to suggest that the applicant’s life was subjected to any threat in the Philippines. The relevant incident took place in March 2014. He did not flee to Hong Kong until February 2018, nearly four years after the incident. Despite spending all the time in the Philippines and most of those four years in Davao City, the applicant was never once harmed by DDS or any drug syndicates. If these groups of people had any intention to harm him, they would have done so in those four years. The fact that he was able to live in the Philippines, relocate his family to his parent-in-law’s home, then engage in odd labour jobs in Davao City freely, without having been harmed by these alleged groups, suggested that the risk of it happening was low.

22.Moreover, the Board found from objective country of origin information (“COI”) that reasonable state protection would be available to the applicant should he need it upon his return to the Philippines, and internal relocation was viable for the applicant.

23.Thus, the applicant’s alleged danger upon return to his home country had been duly considered by the Board. The Board concluded that the applicant would not face a real risk of any of the proscribed forms of harm if refouled.

24.The assessment of evidence, COI and risk of harm was primarily within the realm of the Board. The Board was entitled to come to its own conclusion. If the applicant is seeking to challenge the Board’s finding of facts, it is not permissible in an application for judicial review. This court finds nothing wrong or unreasonable in the way for the Board reached its decision.

25.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.

26.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

27.For reasons aforesaid, the Leave Application is dismissed.

Dated the 23^rd day of October 2025

( Irene LEE )
for Registrar, High Court

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

Notes for the applicant: If leave has been granted, the applicant or the applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent/Handed to the applicant/the applicant’s solicitors on: 23 October 2025 Applicant’s ref. no: Nil		Sent/Handed to the putative respondent / the putative respondent’s solicitors / such putative interested parties as may be directed by the Court / the putative interested parties’ solicitors on: 23 October 2025 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative respondent’s ref. no.: USM 14131/18/10/473/F922 Director of Immigration Putative interested party’s ref. no.: QA T/C 3971/18 (formerly RBCZ/10598/18) (PSO) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)