LEONIDO DAISY GONZALES v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 248/2023

[2026] HKCFI 3136

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 248 of 2023

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By a form 86 filed on 20 February 2023 (the “Form 86”), the Applicant applied for leave to apply for judicial review of a decision by the Torture Claims Appeal Board (the “TCAB”) dated 9 February 2023 (the “TCAB Decision”), which affirmed a decision by the Director of Immigration (the “DOI”) dated 10 December 2021 in refusing the Applicant’s non-refoulement protection claim. She named the TCAB as the proposed respondent and the DOI as an interested party.

2.  The Applicant requested for a hearing and she attended the same.

Background

3.  The Applicant is a national of the Philippines. She seeks non-refoulement protection on the basis that if she was returned, she would be harmed or killed by her former boyfriend from whom she had borrowed money and could not repay. Her personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be assessed through a hyperlink[1], and I shall not repeat the same herein.

Discussion

4.  In a judicial review, this court does not provide a further avenue of appeal. Though in non-refoulement case an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision-makers. This 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 TCAB (Nupur Mst v Director of Immigration [2018] HKCA 524, [14(1)]). There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anor (2007) 10 HKCFAR 676).

5.  At the hearing, when asked if she had anything to add she informed me that her life would still be at risk if she was returned, and that she had medical conditions for which she was undergoing treatment in Hong Kong. These are either repetition of her allegation or irrelevant to the issues at hand.

6.  In her affidavit filed in support of this application, a letter to the court dated 4 September 2023 and a set of submissions with documents lodged on 6 May 2026, the Applicant raised a number of complaints. These can be summarised as follows.

7.  First, it is complained that the TCAB failed to properly investigate into Country of Origin Information (“COI”) and cherry-picked COI placed before it. There is no particular as to what the TCAB had omitted to consider or ought to have considered.

8.  Second, it is complained that the TCAB had erred in law by failing to consider psychological strain and threats to her and misdirected itself on the law by failing to assess her fear of return. Despite being categorised as matters of error of law, these are actually matters of fact, namely whether there were indeed such threats to in turn cause credible and sufficient risk and fear on the part of the Applicant.

9.  Lastly, there are other various complaints against the factual findings made in respect of the threats, danger and her alleged fear for life. These and the issue of credibility are firmly within the purview of the primary decision-makers.

10.  As to the documents lodged together with her submissions, they are but online articles in relation to the issue of violence against women in the Philippines. I do not see how these could support the Applicant’s allegations or in turn the findings and conclusions reached by the TCAB based on the COI before it.

11.  In gist, there is nothing in the above that establishes or supports any grounds for judicial review.

12.  Turning then to the TCAB Decision, the TCAB took into consideration the Applicant’s case and evidence, including her testimony at the hearing before and relevant COI [8-13].

13.  The TCAB also bore in mind the correct legal principles in respect of each of the four applicable grounds under the USM [44-52, 66, 68-70, 74-75], and the approach in evidential assessment [14-33, 35-37].

14.  After thorough analysis and assessment, the TCAB found and concluded that, although subjectively having fears of harm, the Applicant’s alleged risks and any of the grounds were not made out [38-81].

15.  Further, the TCAB found and concluded that internal relocation would in any event be available to the Applicant [82-91].

16.  I do not see any error of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.

Conclusion

17.  For the above reasons, I am not satisfied that this court should intervene by way of judicial review. I therefore dismiss the application.

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