Case Document

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HCAL 501/2023

[2026] HKCFI 4547

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 501 OF 2023

BETWEEN

	Aquino Benigno Eresuelo	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 oral submissions by the applicant in open court;

Order by Deputy High Court Judge Michael WONG:

1. 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 30 March 2023, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 10 March 2023 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL000501_2023_files/the_Board's_Decision.pdf

2.The Board found that the applicant had failed to establish a case for non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 25 January 2022 and confirmed the same, which rejected the applicant’s non-refoulement claim.

The applicant’s case

3.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.

4.In sum, the applicant claimed for non-refoulement protection because if refouled to the Philippines, he feared he would be harmed or killed by his creditor Chris Joson (“the Creditor”) and her followers due to the applicant’s inability to repay the loan obtained from her.

Oral hearing

5.The applicant requested for an oral hearing of the Leave Application, and his case was heard on 6 August 2026.

6.When this court asked the applicant for the grounds of his intended judicial review, he merely reiterated the basis for his non-refoulement claim, namely that he had borrowed money from the Creditor and he received threats from her. The applicant added that the Creditor would ask people who worked at the airport to hold him as she was powerful and well known, and the applicant would be killed if he returned to his country.

7.When this court asked the applicant what was wrong with the Board’s Decision, he merely replied that he made the Leave Application so that he could stay in Hong Kong.

Grounds for judicial review

8.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).

9.The applicant did not identify any ground for the intended judicial review in Form 86.

10.In his supporting affidavit dated 30 March 2023, the applicant only stated that he had life threat in his motherland and he had big enemy who wanted to kill him.

11.As aforesaid, the applicant only reiterated at the oral hearing the basis of his non-refoulement claim and the danger he would have if refouled.

Discussion

12.First of all, the applicant’s danger in his home country, including his claim that he would be put on hold at the airport, had been duly assessed but rejected by the Board. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.

13.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).

14.Thus, the applicant cannot ask this court to re-assess his non-refoulement claim. Nevertheless, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the applicant for the intended judicial review.

15.In assessing the appeal/petition by the applicant, the Board held an oral hearing on 21 February 2023 and the applicant was present. Thus, the applicant was given the opportunity to present his case to the Board in person.

16.As can be seen from the Board’s Decision, the Board had given a detailed analysis of the applicant’s claims and its reasoning in rejecting the applicant’s claim for non-refoulement protection.

17.The Board had laid out its assessment of the applicant’s credibility in paragraphs 39 to 42 of the Board’s Decision, and it is not necessary to repeat the same here.

18.In gist, the Board found material facts and information provided by the applicant implausible or unreliable and affected the applicant’s credibility and the reliability of his evidence. The Board found that the applicant’s delay in making his non-refoulement claim cast serious doubts on the veracity of his claims. The Board also found no plausible explanation given by the applicant as to why the Creditor could kill him or stop him at the airport. The applicant’s allegation that the police would kill people if paid was only hearsay and not his personal experience. The applicant’s wife, who was also a domestic helper in Hong Kong, was negotiating with the Creditor for the repayment of his debts and had paid for him some instalments to the Creditor. Further, the Board found no plausible evidence substantiating that the applicant had suffered any pain and suffering which would have reached the minimum level of severity in mistreatment to amount to torture or CIDTP[1].

19.On the totality of evidence, the Board was not convinced that the applicant overstayed in Hong Kong because of the alleged threat to harm or kill him by the Creditor or her husband, nor was it convinced that the Creditor would or could try to locate him all over the country to harm him. The applicant had not alleged any physical sufferings and his alleged fears were based on speculations, which were far-fetched. The Board found that the centerpiece of the applicant’s story did not stand. The Board considered that the applicant was dishonest and unreliable and that he was not a genuine claimant.

20.Moreover, the Board found that the applicant’s alleged harm came from non-state actors and was unrelated to any Convention reasons.

21.In relation to state protection, the Board found from country of origin information (“COI”) that despite setbacks, the government of the Philippines had performed due diligence on its duties as well as upheld the rule of law. The Board did not accept that state protection would not be available to the applicant if he was to return to the Philippines.

22.Further, the Board had laid out full reasons in paragraphs 72 to 75 (there were in fact two paragraphs which were numbered as paragraph 73) of the Board’s Decision for its finding that the applicant could safely relocate internally within the Philippines without undue hardship.

23.Thus, the Board found that the applicant had no real risk of any of the proscribed forms of harm upon his return to the Philippines.

24.The finding of facts, including the assessment of evidence, COI and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

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 error 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 12^th day of August 2026

( Gladys 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 his 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: 12/08/2026 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: 12/08/2026 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative respondent’s ref. no.: USM 19875 Director of Immigration Putative interested party’s ref. no.: QA T/C 2465/21 (Formerly RBCZ 5000296/21) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)