NARSUBA JENNY ANNE GUILLERMO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 751/2020

[2025] HKCFI 3172

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 751 of 2020

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;

1.  The Applicant’s Form 86 be amended to name only the TCAB as putative respondent and the DI as putative interested party; and

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

Observations for the Applicant:

1.  By a Form 86 filed on 23 April 2020 (“Form 86”), the Applicant sought leave for judicial review of the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“TCAB”) made on 30 March 2020 (“TCAB Decision”). A copy of the TCAB Decision can be viewed by the following hyperlink[1].

2.  The TCAB Decision was made pursuant to a petition/appeal from a decision of the Director of Immigration (“DI”) dated 14 August 2019 (“DI Decision”). In the Form 86, the Applicant challenged both the TCAB Decision and the DI Decision, and name both decision makers as putative respondents. It is trite that the DI’s decisions in non-refoulement claims are not susceptible to judicial review after the claimants pursue appeals/petitions to the TCAB (see Re Moshsin Ali [2018] HKCA 549 at §§31-45). I amended the Form 86 on my own motion to name only the TCAB as a putative respondent and the DI as a putative interested party.

3.  The Applicant has set out a few “grounds on which relief is sought” in the Form 86’s supporting affirmation. As the DI Decision has been superseded by the TCAB Decision, I will only focus on those challenges against the TCAB Decision.

4.  First, it was said the Applicant “believed” the TCAB Decision was not reasonable and unfair “as required by the Wednesbury test”. Secondly, it was said Article 2 of the Bill of Rights (“BOR”) covered extra-judicial killings such as those faced by the Applicant if she were to return her country (the Philippines). Thirdly, it was said the TCAB did not give sufficient time and chance for the Applicant to arrange relevant evidence.

5.  The Applicant’s non-refoulement claim was based on an alleged risk that an influential businesswoman lending money to her would harm or kill her because of her inability to repay the loan. Additionally, the Applicant also feared that her husband would ill-treat her.

6.  The TCAB conducted an oral hearing for the Applicant to make representations and answer factual questions. After an intense factual analysis of the Applicant’s assertions, the TCAB was not convinced about the existence of the alleged loan because, inter alia, the Applicant could not provide consistent information as to how and how much money was borrowed. The TCAB also found the Applicant’s dispute with her husband purely domestic and the Applicant’s account of how her husband threatened her ambiguous. Based on those factual findings, the TCAB assessed that the Applicant’s risk of being tortured, having her rights under Articles 2 and 3 of the BOR violated and being persecuted to be remote and not substantiated.

7.  I have reviewed the TCAB Decision vigorously. In my judgment, the TCAB Decision was based on sound factual findings and there was no apparent legal error in the decision; neither can it be said to be irrational in the Wednesbury sense. There is no disagreement that if a real risk of extra-judicial killing against the Applicant exists should she return to her home country (e.g. by reason of the country’s failure to provide protection to its citizens from such risk), BOR2 would cover the situation and may, subject to other considerations such as internal relocation alternative, entitle her to non-refoulement protection. But in this case the Applicant was factually found to be not subject to such real risk. The Applicant did not explain what evidence she would have arranged if further time had been given to her before the TCAB Decision, and why she did not seek more time, in either the Form 86, the supporting affirmation or the oral hearing before me. To the contrary, I noted from paragraph 39 of the TCAB Decision that the Applicant was given the opportunity to provide updated information and/or information which might help advance her case. The Applicant then confirmed with the TCAB that she did not have further information and/or evidence for the TCAB and agreed that her appeal should be conducted on the basis of the information she had previously submitted to the DI. There has been no allegation that this paragraph of the TCAB Decision does not truly reflect what happened during the TCAB proceedings.

8.  None of the proposed grounds of judicial review is reasonably arguable.

9.  It has been reiterated time and again that the primary responsibility for the factual assessment of whether any future risk of ill-treatment exists if an applicant returns to his/her home country lies with the TCAB. In the absence of any errors of law, procedural unfairness or irrationality, this Court would not reopen the TCAB’s findings or make a determination on the case afresh. The role of the Court in a judicial review is not to provide a further avenue of appeal (see Re Lakhwinder Singh [2018] HKCA 246). The leave application is accordingly 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