Case Document

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HCAL 2132/2024

[2026] HKCFI 5690

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2132 OF 2024

BETWEEN

	Antonio, Rodel Calaur	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 14 November 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 21 September 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/2024/HCAL002132_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”). Accordingly, the Board affirmed the decision of the Director of Immigration (“the Director”) dated 28 April 2022, which rejected the applicant’s non-refoulement claim.

Amendments

3.In Form 86, the applicant named the Board and “DIRECTOR IMMIGRATION” as both the putative respondents and the putative interested parties, when only the Board should be named as the putative respondent, and only the Director should be named as the putative interested party.

4.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”.

Late application

5.By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made.

6.However, the applicant filed Form 86 on 14 November 2024, which was more than 13 months after the Board’s Decision (made on 21 September 2023). The applicant was hence late for more than 10 months in making the Leave Application, and this court has to consider whether there is any good reason to extend the time for the applicant to make the Leave Application.

7.As held in AW v Director of Immigration [2016] 2 HKC 393, the criteria for granting an extension of time are:

(i)  the length of the delay;

(ii)  the reason for the delay;

(iii)  the merits of the intended application; and

(iv)  any prejudice to the putative respondent and to public administration.

8.The applicant did not make any application for extension of time and provided no explanation for the delay when he filed the Leave Application.

9.A delay of more than 10 months is substantial, and there is simply no reason for this court to extend the time for the applicant to make the Leave Application when no explanation was given for the delay at all. More importantly, there is no merit in the Leave Application whatsoever as discussed below.

10.Having considered the above criteria, this court is not prepared to grant any extension of time to the applicant to file the Leave Application. The Leave Application can therefore be dismissed on the ground of being made out of time alone.

11.However, for the sake of completeness, this court will still deal with the Leave Application.

The applicant’s case

12.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.

13.In sum, the applicant claimed for non-refoulement protection because if refouled to the Philippines, he was in fear of being subjected to ill-treatments inflicted and being killed by members of Tau Gamma Fraternity (“TF”), which was one of the triad societies in the Philippines, as the applicant wanted to quit TF but TF did not let him do so.

Disposal on paper

14.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

15.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).

16.In Form 86, the applicant stated that it was his firm belief that the Director failed to adequately appreciate or assign the proper importance to the presence of state acquiescence in his case, leading to an unfair outcome of rejecting his claim.

17.In the applicant’s supporting affirmation dated 14 November 2024, he stated that he would like to have judicial review against the Board’s Decision and the Director’s Decision because he was not satisfied with the decisions.

18.The applicant had also annexed a one-page handwritten document to his supporting affirmation. In the said document, the applicant expressed his dissatisfaction that the immigration officer rejected his claim without conducting a proper inquiry, especially considering the significant geographical distance between the place where his problems persisted and the location where the decision was made. The applicant requested this court to scrutinize the decision and thoroughly examine the evidence presented, and to grant leave to have the Director’s Decision judicially reviewed.

Discussion

19.First of all, only the Board’s Decision is reviewable by judicial process and not the Director’s Decision. There are established statutory procedures of appeal from the Director to the Board and the applicant had invoked those procedures. The Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549). This court will therefore deal with the Leave Application in respect of the Board’s Decision only.

20.Thus, the applicant’s accusations against the Director and the Director’s Decision in Form 86 and the document annexed to his supporting affirmation can be simply ignored.

21.The ground that the applicant stated in his supporting affirmation which was against the Board, namely that he was not satisfied with the Board’s Decision, cannot help him at all, as the accusation was advanced without any particulars. He did not state how or why the Board’s Decision was flawed and/or how or why the Board had failed to assess his claim properly.

22.The Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626). Further, as held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”.

23.The applicant’s danger in his country 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.

24.Thus, what the applicant stated in his Form 86, his supporting affirmation and the document annexed to his supporting affirmation cannot amount to any valid ground to challenge the Board’s Decision.

25.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).

26.Thus, despite the fact that the applicant failed to advance any valid ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid.

27.In assessing the appeal/petition by the applicant, the Board held an oral hearing on 9 May 2023. The applicant was present and was thus given the chance to present his case to the Board in person.

28.As can be seen from the Board’s Decision, the Board gave full and detailed reasoning in rejecting the applicant’s claims. Its consideration of the applicant’s evidence and the applicant’s claim against all the applicable grounds under the USM were laid out in paragraphs 12 to 50 of the Board’s Decision, and it is not necessary to repeat the same here.

29.In gist, the Board found that the ill-treatments the applicant claimed to have faced fell short of the requisite minimum level of severity. On the applicant’s evidence, he was only attacked once in 2005. The Board found that even assuming he was attacked by TF members, his injury did not seem to have prevented him from coming to Hong Kong to work in 2016. The Board found no evidence to support that the applicant’s brother Romel was actually attacked by TF members in 2006. There was also no evidence or any detail of the alleged verbal threats by TF members. Further, there was no evidence that TF members had any real intention to seriously harm or kill the applicant.

30.Moreover, the Board found the fact that the applicant returned to the Philippines for holiday with his Hong Kong employer was inconsistent with his alleged fear of a risk of harm by TF members, especially when the applicant thought that TF members were all over the country. The Board found no other evidence, except the hearsay evidence from the applicant’s mother back in 2015 or 2016, to suggest that TF members had made any threat to the applicant or his family or even contacted him since 2016.

31.In addition, the Board found that the applicant’s lengthy delay of nearly 6 years in making a non-refoulement claim did not sit well with his alleged fear of harm by TF members.

32.Apart from the findings as summarised above, the Board had also discussed the availability of state protection to the applicant in paragraphs 28 to 41 of the Board’s Decision and found that adequate state protection was available to the applicant to protect him from the alleged attack or threat by TF members if he was to return to the Philippines.

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

34.Although the Board did not make assessment as to the viability of internal relocation for the applicant, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that he qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997). In other words, internal relocation only arises if the applicant has established a real risk of persecution in his home area (see Gardi v SSHD [2002] 1 WLR 2755).

35.As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm and that adequate state protection was available to him upon his return to the Philippines, it is not necessary for the Board to further consider internal relocation.

36.The finding of facts relating to a non-refoulement claim, including the assessment of evidence, country of origin information 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.

37.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.

38.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

39.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 20280 Director of Immigration Putative interested party’s ref. no.: QA T/C 192/22 (Formerly RBCZ 5000036/22)(T1I87) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)