Salino Richito Saladaga v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 214/2024 and HCAL 1114/2026

(Heard together)

[2026] HKCFI 4701

HCAL 214/2024

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 214 of 2024

BETWEEN

_____________

AND

HCAL 1114/2026

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1114 of 2026

BETWEEN

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 Levy:

HCAL 214/2024

The applicant’s application for leave to apply for judicial review be dismissed.

HCAL 1114/2026

1.  Leave to the applicant to amend the Form 86 by substituting the Director as the proposed putative respondent, and deleting the Director as the putative interested party. The filing of the amended Form 86 is dispensed with.

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

Observations for the Applicant:

Introduction

HCAL 214/2024

1.By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 24 January 2024, the applicant applied for leave to apply for judicial review (“2024 Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 4 January 2024 (“Board’s Decision”) dismissing the applicant's appeal against the decisions of the Director of Immigration (“Director”) dated 30 June 2022 rejecting the applicant's non-refoulement claim on all applicable grounds[1]. The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2024/HCAL000214_2024_files/the_Board's_Decision.pdf

2.The basis of the applicant’s claim was that, if refouled to Philippines, he would be harmed or killed by a drug dealer who had forced his brother to sell drugs and other drug dealers after the applicant reported them to the police. The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

HCAL 1114/2026

3.After the filing of the 2024 Leave Application against the Board’s Decision, on 18 November 2025, the applicant submitted a written request (“Request”) for the making of a subsequent claim for non-refoulement under s 37ZO of the Immigration Ordinance. On 30 April 2006, the Director refused (“Director’s Subsequent Decision”) the Request. By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 17 June 2026, the applicant applied for leave to apply for judicial review (“2026 Application”) against the Director’s Subsequent Decision.

4.The court scheduled a hearing on 28 July 2026 for both leave applications. The applicant attended in person and had no objections to have both applications be heard together. Since the applicant had erroneously named the Board as the proposed respondent and the Director as the interested party, he applied to amend correcting the errors. The court allowed the applicant’s proposed amendment by substituting the Director as the proposed putative respondent, and deleting the Director as the putative interested party.

Discussion

5.The leave application operates as a “filtering” process. Hence, there is no requirement or expectation to give elaborate reasons for my decision.[2] It is therefore sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

6.In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[3], and further to make full and frank disclosure of all material facts to be verified by an affidavit. In the 2026 Application, the applicant’s Form 86 and the supporting affirmation provided no such grounds. In the 2024 Application, the applicant alleged in the supporting affirmation that the Board refused to accept the documents which were not translated into English and that it had refused to allow him more time. He further alleged that the interpreter asked him to hurry as he had another job. The Form 86 in the 2024 Application provided no grounds at all.

7.In light of the allegations the applicant made in the supporting affirmation of the 2024 Application, the court therefore asked him to elaborate on the allegations. The applicant appeared to be at a loss when he was informed of those allegations. After he heard the interpreter at the hearing interpreted the contents of the supporting affirmation to him, he said that he never made any of those allegations. He believed that they were written by the person who prepared the papers for him without his knowledge. Apart from disavowing the allegations, the applicant had nothing to say in either of the 2024 or the 2026 Applications.

8.As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality.[4]

HCAL 214/2024 Application

9.In the present case, the Board found that the applicant would not be subjected to future risk of harm as the past ill-treatment failed to meet the requisite level of severity, and that any feared ill-treatment was private and personal in nature. The Board further found that both state protection and internal relocation would be reasonably available. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

10.Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness. After the applicant had disavowed all the allegations he made in the supporting affirmation, the applicant therefore had advanced no grounds, whether written or oral, in support of the 2024 Application. The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision. The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[5].

Order for HCAL 214/2024 Application

11.The applicant’s application for leave to apply for judicial review be dismissed.

HCAL 1114/2026 Application

12.The applicant submitted 2 letters in support of the Request. The basis of the claim for the Request was that, if refouled, he would be harmed or killed by the same drug dealer and his gangs.

The statutory provisions on subsequent claims

13.Subsequent non-refoulement claims are regulated by s 37ZO of the Immigration Ordinance (Cap 115), which provides:

Section 37ZO. “Limitation on subsequent claim

(1)   Except as provided in subsection (2), a person who has previously made a torture claim must not subsequently make another torture claim.

(2)   A person may make a subsequent claim if the person provides sufficient evidence in writing to satisfy an immigration officer that—

(a)   there has been a significant change of circumstances since the previous claim was finally determined or withdrawn; and

(b)   the change, when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success.

(3)   In deciding whether or not a person may make a subsequent claim under subsection (2), an immigration officer may take into account any finding of credibility or fact made by an immigration officer or the Appeal Board in relation to a torture claim previously made by the person.”

Discussion

14.In the Director’s Subsequent Decision, after the Director had taken into account the facts and the findings, he made in the Director Decision and the Board’s Decision, the Director found that the applicant’s claim was of generally of the same nature or source, and therefore would not amount to a significant change of circumstances. After having considered the updated COI, the Director found that there was no change of situation regarding the previously found availability of state protection and internal relocation. The Director found that the Request had no realistic prospect of success and refused the applicant’s Request. These are findings of fact, which the court in a judicial review will not interfere with subject to there being any public law errors.

15.Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Director correctly applied the law and observed a high standard of fairness. The applicant has not shown any errors of law or procedural unfairness or irrationality in the Director’s Subsequent Decision. The applicant’s intended challenge to Director’s Subsequent Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[6].

Order for HCAL 1114-2026 Application

16.Leave to the applicant to amend the Form 86 in terms of [4] above. The filing of the amended Form 86 is dispensed with.

17.The applicant’s application for leave to apply for judicial review be dismissed.

Dated the 21^st day of August 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