Saya Ao Reymond Mabiasan v. Torture Claims Appeal Board
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HCAL 1070/2023 [2026] HKCFI 5423 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1070 OF 2023 BETWEEN
Application for leave to apply for judicial review NOTIFICATION of the Judge’s decision (Order 53, rule 3) Following:
Order by Deputy High Court Judge Michael WONG:
Observations for the applicant: The Leave Application 1.By way of Form 86 dated and filed on 3 July 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 21 June 2023 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:- 2.The Board found that the applicant’s application for non-refoulement protection in Hong Kong was not made out on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Thus, the Board refused his appeal/petition against the decision of the Director of Immigration (“the Director”) dated 29 October 2020 and confirmed the same, which rejected the applicant’s claim for non-refoulement protection. Amendment 3.The applicant named the Board as both the putative respondent and the putative interested party in Form 86. 4.In fact, the Board should only be named as the putative respondent, and the Director should be named as the putative interested party. 5.Thus, this court makes an order on its own motion to amend the name of the putative interested party to “Director of Immigration”. The applicant’s case 6.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. 7.In sum, the applicant claimed for non-refoulement protection because if refouled to the Philippines, he would be harmed or killed by his ex-wife, her family, and in particular her brother-in-law, and the New People’s Army (“the NPA”). The applicant claimed that his ex-wife and her family wanted him to share the proceeds of the sale of the matrimonial home but he refused. He further claimed that his ex-wife’s family had framed him for being a police informant and had intelligence of the hideouts of the Calabarzon Command Group of the NPA, and hence he was pursued by the NPA as well. Oral hearing 8.The applicant requested for an oral hearing of the Leave Application and his case was heard on 17 September 2026. 9.When this court asked the applicant for the grounds of his intended judicial review, he merely said that he could not go home because some people in the Philippines were still hunting for him. Grounds for judicial review 10.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). 11.The applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affidavit dated 3 July 2023. 12.As aforesaid, at the oral hearing, the applicant only mentioned that some people were hunting for him in the Philippines, which is not a ground for judicial review at all. Discussion 13.First of all, the applicant’s danger in his country had been duly assessed but rejected by the Board. If he intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review. 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, 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. 16.In assessing the appeal/petition by the applicant, the Board held an oral hearing on 13 October 2022 and the applicant was present. Thus, the applicant was given the opportunity to present his case to the Board in person. 17.The Board laid out its assessment of the applicant’s claims in paragraphs 46 to 65 of the Board’s Decision, and it is not necessary to repeat the same here. 18.In gist, after considering all the evidence, the Board was of the view that the applicant had exaggerated and fabricated his evidence to advance a claim for non-refoulement protection and that his former wife’s family were not associated with the NPA. Furthermore, the Board found that the applicant had not been identified by the NPA as an informant and was not at risk for this reason. 19.The Board further found that in any event, even if it were to accept that the applicant’s former wife’s family were members of the NPA and were using their membership to frighten or harm the applicant so he would give his former wife money from the sale of his house, the Board was satisfied that state protection would be available to the applicant. 20.The Board found from country of origin information (“COI”) that the Philippine government had been active in trying to rid the country of the CPP-NPA[1] insurgency. The NPA was estimated to have only some 4,000 members or less at the material time of the Board’s Decision. The Board considered it extremely unlikely that the NPA would expend meagre resources on locating and harming the applicant. 21.Moreover, the Board found that the Philippine government was willing and able to act against the NPA and its members. There would appear to be no reason why the applicant could not obtain assistance from the police or security authorities if he was threatened by the NPA, including his former wife’s family members. The Board was therefore satisfied that in the unlikely event that the applicant was threatened with harm by the NPA, adequate state protection was available to him. The Board assessed the applicant’s risk of harm on this basis as being very low. 22.The Board had also considered whether the applicant had been threatened by his former wife’s family because they wanted him to share the proceeds of the sale of his house and whether he would be at risk for this reason should he return to the Philippines. Although the Board accepted that his former wife’s family wanted money from him, there was no evidence that they tried to harm him for this reason. The Board considered that even if they did want to harm the applicant, irrespective of whether they were associated with the NPA, the applicant would be able to seek the police’s assistance. 23.Moreover, the Board found that even if for whatever reason the applicant could not obtain assistance from the police or other authorities, he could safely relocate elsewhere in the Philippines. The Board had given its reasons for such a finding in paragraphs 61 to 63 of the Board’s Decision, and it is not necessary to reiterate the same here. 24.Thus, the Board concluded that the applicant had failed to establish a case for non-refoulement protection in Hong Kong on any of the applicable grounds under the USM. 25.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. 26.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. 27.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 28.For reasons aforesaid, the Leave Application is dismissed. Dated the 23rd day of September 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 [1] CPP was used as an abbreviation for the Communist Party of the Philippines in the Board’s Decision |
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