QUEJADA MARICRIS QUILBIO v. TORTURE CLAIMS APPEAL BOARD

HCAL 262/2020

[2025] HKCFI 1816

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 262 OF 2020

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;

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, “Director of Immigration” be added as the putative interested party and the decision in respect of which relief is sought be amended to “The Decision of the Torture Claims Appeal Board dated 20 December 2019”.

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 23 January 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision dated 31 August 2018. However, that was the date of a decision of the Director of Immigration (“the Director”) rejecting the applicant’s claim for non-refoulement protection on all the applicable grounds under the Unified Screening Mechanism (“the USM”).

2.  The applicant cannot challenge the Director’s said decision as she had already appealed against that decision to the Torture Claims Appeal Board (“the Board”) pursuant to section 37ZR of the Immigration Ordinance, Cap.115. The Board gave its decision on 20 December 2019 (“the Board’s Decision”) and dismissed the applicant’s appeal. The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000262_2020_files/the_Board's_Decision.pdf

3.  The Board found that the applicant was unable to establish a real risk pertinent to any of the applicable grounds under the USM and confirmed the Director's said decision accordingly.

4.  As the Board’s Decision has superseded the Director’s said decision, the subject matter of the Leave Application should be the Board’s Decision instead of the Director’s said decision (see Re Moshsin Ali [2018] HKCA 549).

Amendments

5.  The applicant named both the Director and the Board as putative respondents, and did not name any putative interested party in Form 86, when only the Board should be the putative respondent and the Director should be the putative interested party. Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board” and “Director of Immigration” be added as the putative interested party.

6.  As aforesaid, the applicant should apply for leave in respect of the Board’s Decision. Thus, on the court’s own motion, the decision in respect of which relief is sought is amended to the Board’s Decision.

The applicant’s case

7.  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.

8.  In sum, the applicant claimed for non-refoulement protection because her husband often asked her for money and assaulted her when he got drunk or lost in gambling. In 2013, when the husband learnt of the applicant’s relationship with a Chinese man who was a Hong Kong resident, the husband threatened to kill the applicant’s family members and the applicant when she returned to the Philippines.

Grounds for judicial review

9.  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).

10.  The applicant did not advance any specific ground for her intended judicial review in Form 86, nor in her supporting affirmation dated 23 January 2020. She merely stated that she cannot go back to her country as her husband still wants her to be killed, and that the husband is still active in the NPA[1] and the government, and has connections with them.

Discussion

11.  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).

12.  In assessing the appeal by the applicant, the Board arranged an oral hearing on 22 July 2019. The applicant was represented by a lawyer from the Duty Lawyer Service.

13.  The Board accepted that the applicant’s husband had assaulted her in the past, but even at the height of the events, he only threatened to kill her. He had never severely harmed her. It was the applicant’s evidence that her husband never really intended to kill her or hurt her badly.

14.  The Board found the applicant’s evidence in relation to her husband’s association with the NPA lacking details. Although the applicant’s lawyer emphasised the risk from the NPA, the Board found that it was only the applicant and her mother’s speculation that the men who wandered outside her parents’ house in 2013 were members of the NPA and were sent there by her husband. In any event, they did not harm the applicant’s family at all.

15.  The Board also found that the main cause of her husband’s grudge against the applicant, ie her relationship with a man in Hong Kong, had gone with the ending of that relationship in 2015. Further, the fact that the husband had started a close relationship with another woman and had moved with her to Manila in 2016 had likely neutralised his hostility and anger towards the applicant. The Board hence found the applicant’s risk of harm from her husband was minimal. Even if her husband had any connection with the NPA as alleged, the Board found it unlikely that he still had the motive to harm the applicant or to harm her through the NPA.

16.  The Board also found from reliable country of origin information that state protection was available. The applicant’s assertion that the police would not help her was just the applicant’s speculation. The applicant has never sought assistance from the police when she was in the Philippines. Internal relocation, which was viable, would further reduce or negate the risks. Hence, the Board concluded that the applicant was not entitled to non-refoulement protection under any of the applicable grounds.

17.  The applicant had never raised with the Board that her husband has any connection with the government, as alleged in the applicant’s Form 86 and its supporting affirmation. There is nothing wrong for the Board not to assess any evidence that was not within its knowledge. The Board had indeed thoroughly assessed the applicant’s risk from her husband and the NPA and concluded that there was no real risks after its assessment of all the available evidence.

18.  The finding of facts was solely within the ambit of the Board. This court finds nothing wrong in the way the Board reached its conclusion based on the evidence available to the Board.

19.  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 error 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.

20.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be a reasonably arguable claim which enjoyed 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

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

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