Lucas Javib Arsolon v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1513/2025

[2026] HKCFI 4266

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1513 of 2025

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 18 June 2025 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below.

2.The applicant was absent at the hearing on 15 July 2026.  I shall deal with his application on the papers.

The applicant

3.The applicant is a national of the Philippines.  He is an illegal immigrant.  He lodged a non-refoulement claim with the Director of Immigration (“the Director”) on the basis that, if refouled, he will be harmed or killed by members of the New People’s Army (“NPA”) because he wanted to leave NPA.

4.Details of his claim are set out in the Board’s Decision.  See hyperlink. https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001513_2025_files/the_Board's_Decision.pdf

The Director’s Decision

5.The Director considered the applicant’s claim in relation to the following risks:

a.   risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.   risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.   risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.   risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

6.By way of Notice of Decision dated 13 March 2025 (“the Director’s Decision”), the Director dismissed the applicant’s claim on all applicable risks because it was unsubstantiated.

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board.  On 12 May 2025, the Board conducted an oral hearing for his appeal.  He had given oral evidence and answered the Board’s questions.

8.Having considered the evidence, the Board found that for reasons stated [58]-[65], the applicant does not face a risk of proscribed harm at the hands of the Philippines government authorities for reason of his former NPA activities if he returns to his country [66]; and he does not face a real risk of serious or other proscribed harm at the hands of the NPA [69].  It will not be necessary to consider internal relocation in the circumstances. [69]

9.For the reasons above, the Board dismissed his appeal and affirmed the Director’s Decision.

Application for leave to apply for judicial review of the Board’s Decision

10.The applicant has filed Form 86 dated 2 July 2025 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation, he raised that he was given a chance to make submissions; that the Board had relied on the source of news not officially recognized or simply hearsay, resulting in the Board making speculation that he is safe to return to the Philippines.

DISCUSSION

12.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 Decision on the applicant’s appeal.  The Court will not usurp the fact-finding power vested in the Director and the Board.  See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

13.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

14.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and 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.”

15.The reasons raised in paragraph 11 will not assist his application.  He was before the Board and he would be able to make submissions to the Board unless the Board did not allow him to do so.  There is no record in the Board’s Decision that he had raised this issue before the Board.  He has still not disclosed what submissions he wanted to make before the Board.  He was given a chance to make his submissions before the Court.  However, he was absent without any reason.  The other reasons are simply bare assertions without any evidence in support.  There is no reason for this Court to interfere with the Board’s Decision.

16.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

17.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss his application.

Dated the 29^th day of July 2026

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