Case Document

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HCAL 1330/2024

[2026] HKCFI 5734

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1330 OF 2024

BETWEEN

	Cuntapay Vicente San Antonio	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 or counsel in open court;

Order by Deputy High Court Judge Michael WONG:

1. On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the name of the putative interested party be amended to “Director of Immigration”.

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 12 August 2024, 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 31 July 2024 (“the Board’s 2^nd Decision”). The Board’s 2^nd Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2024/HCAL001330_2024_files/the_Board's_Decision.pdf

2.The Board found that the applicant’s claim for non-refoulement protection in Hong Kong failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board confirmed the decision of the Director of Immigration (“the Director”) dated 8 June 2018 (“the Director’s Decision”), which rejected the applicant’s non-refoulement claim.

Amendments

3.The applicant named the Board and Immigration Department as both the putative respondents and the putative interested parties 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.This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party to “Director of Immigration”.

Procedural history of the applicant’s non-refoulement claim

6.The applicant first appealed/petitioned to the Board against the Director’s Decision on 13 June 2018. By way of the Board’s decision dated 31 December 2018 (“the Board’s 1^st Decision”), the Board dismissed the applicant’s appeal/petition.

7.On 8 January 2019, the applicant applied to this court for leave to apply for judicial review of the Board’s 1^st Decision. This court granted leave to the applicant on 7 April 2022. By a consent order dated 4 July 2023, this court quashed the Board’s 1^st Decision and remitted the applicant’s appeal/petition against the Director’s Decision to the Board, to be differently constituted, for a fresh determination.

8.After a reconsideration of the applicant’s case by a differently constituted Board, the Board found that the applicant’s application for non-refoulement protection failed on all the applicable grounds under the USM and confirmed the Director’s Decision by the Board’s 2^nd Decision.

9.The present Leave Application is in respect of the Board’s 2^nd Decision.

The applicant’s case

10.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 2^nd Decision, which can be viewed in the hyperlink above.

11.In sum, the applicant claimed for non-refoulement protection because if refouled to the Philippines, he would suffer serious harm, even death, at the hands of his neighbour Rufino Boi Galvez (“RBG”), who was a drug pusher, or other members of the drug syndicate controlled by RBG, as they believed that the applicant informed the police about the drug-dealing activities of RBG’s syndicate, which led to the arrest of RBG and other members of the syndicate.

Disposal on paper

12.The applicant did not request for an oral hearing of the Leave Application. This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court. Hence, the Leave Application is dealt with on paper.

Grounds for judicial review

13.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).

14.The applicant did not advance any grounds for his intended judicial review in Form 86, nor in his supporting affidavit dated 12 August 2024. He only stated both in Form 86 and the said affidavit that he would like to reject and review the Board’s 2^nd Decision, and added in the affidavit that they disregarded his dangerous situation.

Discussion

15.First of all, the applicant’s danger in his home country had been 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 unless there were errors of law, procedural unfairness or irrationality in the Board’s 2^nd Decision.

16.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).

17.Thus, despite the fact that the applicant did not advance any valid ground for the intended judicial review, this court will scrutinize the Board’s 2^nd Decision for any errors of law, procedural unfairness, or irrationality as aforesaid.

18.In re-assessing the appeal/petition by the applicant, the Board (differently constituted) held an oral hearing on 23 November 2023. The applicant was legally represented and was thus given the chance to present his case to the Board through his legal representative.

19.As can be seen from the Board’s 2^nd Decision, the Board gave full and detailed reasoning in rejecting the applicant’s claim for non-refoulement protection.

20.The Board had laid out its assessment of the general credibility of the applicant and the applicant’s claims and evidence in paragraphs 90 to 115 of the Board’s 2^nd Decision.

21.In gist, the Board was prepared to accept, on the balance of probability, that: (1) illegal drug dealing was relatively common in the applicant’s home area when the applicant lived there, and that such activity was quite commonly known about by locals; (2) the applicant did remonstrate with RBG, after the applicant saw RBG talking to the applicant’s eldest son in February 2016; (3) the applicant did say to RBG that the applicant would report the matter to the police; (4) the applicant did not make any report to the police about the claimed drug dealing activities on RBG; (5) the applicant merely stated that he would make a report to the police in order to scare RBG; and (6) RBG and others were arrested following a police raid on RBG’s home.

22.On the totality of evidence, the Board was also prepared to allow the applicant the benefit of the doubt in relation to the “Gun Incident”. While the Board could accept that the incident occurred as the applicant claimed, there was no other credible evidence to support the applicant’s assertion that RBG and his gang had hired the gunman to attack, harm, or kill the applicant. The Board found that the applicant’s evidence in this regard was based solely on his own speculation which was not supported by any other credible evidence.

23.However, the Board was not persuaded, on the balance of probability, that: (1) the applicant was personally threatened by RBG, or any of the persons arrested, as the applicant claimed, or at all; (2) any threatening gesture was made by one of the arrested persons to the applicant, as the applicant claimed, or at all; and (3) the attack on the applicant’s godson in 2019 was, in any way, related to the applicant.

24.With regards to the new evidence submitted to the Board in relation to the death of his cousin in 2014, the Board found that the applicant’s evidence relating to what he had been told by his cousin regarding his cousin’s activities and connections in drug-dealing amounted to no more than hearsay, which was not supported by any other credible evidence. The Board could attach only minimal weight to this evidence.

25.As to the applicant’s new evidence that the injuries sustained by his godson were inflicted by, or on the direction of RBG and his gang, the Board found that it was based on what his former sister-in-law allegedly told him. The Board was of the opinion that the applicant’s evidence in this regard was totally lacking in credibility, given the fact that the applicant was already in Hong Kong when the claimed attack happened. On the totality of evidence, the Board was not persuaded that the injuries sustained by the applicant’s godson were inflicted by RBG’s gang.

26.The Board also considered the copies of Facebook Messenger messages submitted by the applicant. Nevertheless, the Board noted that the messages were not submitted by the applicant until 2024, and did not, on their face, show the identity of either correspondent. The Board was not persuaded that those messages could be relied upon to support any aspect of the applicant’s case.

27.Given its finding of facts of the case and new evidence presented by the applicant, the Board was not persuaded, on the balance of probabilities, that the applicant was targeted by RBG, or by members of RBG’s syndicate, as the applicant claimed, or at all.

28.On the totality of evidence, the Board was not persuaded, even to the low standard applicable, that there was a real risk that if the applicant were refouled to the Philippines, he would be liable to suffer serious harm, even death, or any other form of ill-treatment, at the hands of RBG, or members of RBG’s drug syndicate, as the applicant claimed, or at all.

29.More importantly, the Board had given full reasons in paragraphs 117 to 119 of the Board’s 2^nd Decision for concluding that, even if the applicant would be at risk of serious harm if he were to return to the Philippines, the applicant could easily and without undue hardship, avoid such risk by relocating to live in the Manila Metropolitan area, where the applicant had lived without any negative experience on two occasions before he left his country.

30.Thus, the Board concluded that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM.

31.The Board did not consider availability of state protection to the applicant in the Board’s 2^nd Decision. However, as the Board found that the applicant had failed to establish, even to the low standard required, that there were substantial grounds for believing that he would be subjected to any of the proscribed forms of harm and that internal relocation was a viable option for him to avoid any risk he might have from RBG and members of RBG’s drug syndicate, it is not necessary for the Board to consider the availability of state protection.

32.The finding of facts relating to a non-refoulement claim, including the assessment of evidence and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. This court finds nothing wrong or unreasonable in the way the Board reached its decision.

33.Having rigorously examined the Board’s 2^nd 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 2^nd Decision. The Board’s 2^nd Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.

34.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

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

Dated the 14^th day of October 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: 14/10/2026 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: 14/10/2026 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative respondent’s ref. no.: USM 12046R Director of Immigration Putative interested party’s ref. no.: QA T/C 1836/18 (Formerly RBCZ 10774/17) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)