CACV 536/2024, [2025] HKCA 394
On Appeal from [2024] HKCFI 3384
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 536 OF 2024
(ON APPEAL FROM HCAL NO 2163 OF 2019)
________________________
BETWEEN |
| | ESTIMA JORDAN GADGADAN | Applicant |
| | and | |
| | TORTURE CLAIMS APPEAL BOARD | Putative |
| | | Respondent |
| | and | |
| | DIRECTOR OF IMMIGRATION | Putative |
| | | Interested Party |
_____________________
| Before: | Hon Chow JA and Cheng J in Court |
| Date of Hearing: | 15 May 2025 |
| Date of Judgment: | 5 June 2025 |
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J U D G M E N T
_______________
Hon Chow JA (giving the Judgment of the Court):
1. This is the Applicant’s appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”) on 3 December 2024 refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petitioner Office (“the Board”) dated 19 July 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 26 July 2018.
BACKGROUND
2. The Applicant is a national of the Philippines. He entered Hong Kong as a visitor on 27 November 2015, and had overstayed since 12 December 2015. On 22 August 2016, he surrendered himself to the Immigration Department. On 24 March 2017, he lodged a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by the Mayor of Ilocos Province in revenge for being involved in a drunken fight with the Mayor’s son. Details of the Applicant’s claim have been summarised by the Judge at §§1-4 of the CALL-1 Form.
3. By a Notice of Decision dated 26 July 2018 (“the Director’s Decision”), the Director dismissed the Applicant’s non-refoulement claim with reference to all applicable risks: risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].
4. The Applicant appealed the Director’s Decision to the Board. On 19 July 2019, the Board dismissed the Applicant’s appeal, and affirmed the Director’s Decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §8 of the CALL-1 Form, as follows:
“In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his account of event of a drunken fight between him and the son of the Mayor of Ilocos that caused him to fear of being harmed or killed by the Mayor in revenge that caused him to flee his country to come to Hong Kong to seek protection as unreliable and unbelievable, that even if his account were true that there is no reliable evidence of any real intention of the Mayor to seriously harm or kill him over such a non-consequential drunken incident which occurred years ago that it is not accepted that there would still be any adverse interest from anyone in him, and that in any event it was a private personal dispute between him and the Mayor without any official involvement that state or police protection would be available to the Applicant upon his return to the Philippines as well as reasonable internal relocation alternatives for him to move safely to other parts of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.”
THE JUDGE’S DECISION
5. On 29 July 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. No ground for seeking relief was given in the Form 86. In his supporting affidavit of the same day, the Applicant merely stated that he did not want to go back to the Philippines because his life would still be in danger there.
6. On 3 December 2024, the Judge gave his decision refusing to grant leave to apply for judicial review, for the following reasons:
“[9] …in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.
[10] As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh…
[11] In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in his claim if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of the Philippines, there is simply no justification to afford him with non-refoulement protection in Hong Kong…
[12] In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.”
THIS APPEAL
7. In his Notice of Appeal filed on 9 December 2024, the Applicant repeated his claimed fear of danger in his home country. He also complained that his application for leave to apply for judicial review was dismissed without a hearing.
8. In his 2-page written submissions lodged on 27 March 2025, other than repeating his fear of being refouled back to his home country, the Applicant states that he disagrees with the findings of the Director and the Board that he could relocate to other parts of the Philippines because, according to the Applicant, it would be very hard for him to live in a place where he is considered a stranger.
9. At the hearing of the present appeal, the Applicant had nothing to add.
DISCUSSION
10. In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed. The Court of Appeal’s role is not to examine the Board’s decision afresh as if it was a fresh application for judicial review (see Nupur Mst v Director of Immigration[2018] HKCA 524, at §14(6)).
11. Further, the assessment of evidence, country of origin information, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director. The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini[2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the Board’s Decision is shown in the present case.
12. The Applicant’s complaint that his leave application was dismissed without a hearing has no merit. Since he did not request for an oral hearing of his leave application, the Judge was entitled to deal with the application on paper pursuant to Order 53, rule 3(3) of the Rules of the High Court, Cap 4A. His disagreement with the findings of the Board and the Director on the issue of internal relocation cannot constitute a valid ground of appeal because, as earlier mentioned, that is a matter primarily within the province of the Board and the Director.
13. The Applicant has failed to identify or show any error in the Judge’s decision refusing to grant leave to apply for judicial review, or raise any viable ground of appeal against the Order.
14. The Applicant’s appeal has no merits, and is dismissed.
(Anderson Chow)
Justice of Appeal | (Yvonne Cheng)
Judge of the Court of
First Instance |
The Applicant, acting in person
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] This refers to the risk of being arbitrarily deprived of his life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] This refers to the risk of persecution with reference to the non‑refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees.