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HCAL 1971/2020
[2025] HKCFI 3838
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1971 OF 2020
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BETWEEN
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Pascua Purita Dela Cruz |
Applicant |
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Torture Claims Appeal Board |
Putative |
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Respondent |
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Director of Immigration |
Putative |
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Interested Party |
Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)
Following:
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”, the name of the putative interested party be amended to “Director of Immigration”, and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 2 September 2020”.
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 14 September 2020 and filed on 30 September 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision dated “SEPTEMBER 02 2020 DECISION WITHOUT HEARING”.
2. The Torture Claims Appeal Board (“the Board”) only made one decision dated 2 September 2020 (“the Board’s Decision”) regarding the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 14 January 2020 (“the Director’s Decision”). It is clear that the applicant was making the Leave Application in respect of 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/2020/HCAL001971_2020_files/the_Board's_Decision.pdf
3. The Board found that the applicant’s claim for non-refoulement protection were not made out on any of the applicable grounds under the Unified Screening Mechanism (‘the USM”). The Board thus confirmed the Director’s Decision, which rejected the applicant’s non-refoulement claim.
Amendments
4. The applicant named both the Board and the Director as the putative respondents and named herself as the putative interested party in Form 86, when only the Board should be named as the putative respondent and only the Director should be named as the putative interested party.
5. 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”.
6. As mentioned, the decision in respect of which relief is sought in the Leave Application should be the Board’s Decision. Hence, it is so amended on this court’s own motion.
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 she feared that if refouled to the Philippines, she would be harmed or killed by her sister, her sister’s husband and her sister’s father-in-law as she had been unable to repay the money borrowed from them.
9. The applicant raised an additional claim in an appeal statement to the Board dated 12 February 2020. She claimed that members of a political party, namely the Liberal Party in the Isabela province, would harm or kill her, as the campaign manager accused her for not doing her job properly by failing to write the candidate’s name when she helped disabled people to vote. The candidate was very angry with her and threatened to kill her.
Grounds for judicial review
10. 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).
11. However, the applicant did not identify any ground for the intended judicial review in Form 86, nor in her supporting affidavit dated 30 September 2020. She merely asserted in her affidavit that her life was threatened and she would be killed because she borrowed money from her sister, brother and father and she had no money to repay.
Discussion
12. 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).
13. Thus, the applicant cannot ask this court to re-assess the facts of her case including the threats she faced from her sister, brother (in law) and father (in law), but this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irregularities.
14. This court noted that the Board assessed the applicant’s appeal/petition without an oral hearing. The Board had given detailed reasons for not having an oral hearing in paragraph 37-43 of the Board’s Decision. In short, the Board accepted the factual basis of the applicant’s claims without reservation and followed the consideration as laid down in St v Betty Kwan and the Director of Immigration, CACV 115/2013, in particular, the Board considered that the applicant would not have anything useful to contribute by way of being heard.
15. There is no absolute right to an oral hearing. The question of whether an oral hearing should be afforded must be decided by the adjudicator at the petition stage after considering all relevant circumstances. Ultimately, what is in issue is the question of fairness, and in the present context, high standards of fairness are involved (see St v Betty Kwan and the Director of Immigration, supra).
16. Thus, it was not a must for the applicant to have an oral hearing before the Board. This court agrees with the Board that an oral hearing was not necessary. There was no procedural unfairness to the applicant when the Board accepted the factual basis of the applicant’s claims without reservation. Thus, the high standards of fairness required for the determination of the applicant’s appeal/petition was not compromised by not having an oral hearing.
17. The Board considered all the information and materials known to it, including extensive country of origin information (“COI”). The Board noted that COI indicated that corruption was a problem in the Philippines both generally and within the police. However, there were also COI materials to show that there was a functioning legal system, that police and the courts generally pursue and punish offenders and that there were ongoing attempts to reduce corruption and improve police effectiveness. The COI indicated that gender-based violence was taken seriously in the Philippines. The Board concluded that reasonable state protection would be available to the applicant should she need it.
18. The Board also considered internal relocation for the applicant and found that even if the Board was wrong in concluding that there was state protection available to the applicant, the applicant could safely and reasonably relocate to a different part of the Philippines. There was absolutely no evidence to suggest that the applicant’s sister, the sister’s family or members of the Liberal Party whom she was involved with in Isabela, had any influence outside her local area. Locating her would be difficult unless the applicant was to make her intentions known. Even with political influence, the Board was not persuaded that a major political party would dedicate resources to finding her in order to harm her if she were to relocate.
19. The Board also found no persuasive evidence to preclude the applicant being able to relocate safely to an area far away from her home area. The applicant has an extensive work history as a domestic helper and has adjusted to life outside her home locality and country. The Board was of the view that it would not be unreasonable for her to relocate to another area in the Philippines and find employment to avoid the harm she feared.
20. The Board thus concluded that there was no real risk the applicant would face any of the proscribed forms of harm should she return to her home country.
21. The Board was entitled to make the above findings. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.
22. 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.
23. 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
24. For reasons aforesaid, the Leave Application is dismissed.
Dated the 26th day of August 2025
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( Irene LEE )
for Registrar, High Court
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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 the applicant’s solicitors must:
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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)).
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Sent/Handed to the applicant/the applicant’s solicitors
on: 26 August 2025
Applicant’s ref. no:
Nil
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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: 26 August 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 16709/20/1/71/F1145
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 1027/19 (formerly RBCZ 10782/19) (T2I114)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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