SANTOS DANIELA GALOS v. TORTURE CLAIMS APPEAL BOARD

HCAL 1021/2023

[2026] HKCFI 3108

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1021 OF 2023

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”, and the name of the putative interested party be amended to “Director of Immigration”.

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 26 June 2023, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 15 June 2023 (“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/2023/HCAL001021_2023_files/the_Board's_Decision.pdf

2.  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”). Accordingly, the Board confirmed the decision of the Director of Immigration (“the Director”) dated 25 October 2021, which rejected her non-refoulement claim.

Amendments

3.  In Form 86, the applicant named the Board / Non-refoulement Claims Petition Office and the Director as both the putative respondents and the putative interested parties.

4.  In fact, only the Board should be named as the putative respondent, and only the Director should be named as the putative interested party.

5.  The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all.

6.  Thus, this court 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”.

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 if refouled to the Philippines, her life would be in danger from the New People’s Army (“the NPA”). She claimed that she once joined the NPA, but left subsequently after she noted that members of the NPA took civilians hostage, which she thought was wrong. She also witnessed twice that members of the NPA burned the equipment of a mining company Platinum Group Metals Corporation (“PGMC”), which started mining on the applicant’s land without the applicant’s permission.

Disposal on paper

9.  The applicant did not request for an oral hearing of the Leave Application. This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court. Hence, the Leave Application is dealt with on paper.

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.  The applicant did not advance any ground for her intended judicial review in her Form 86, nor in her supporting affirmation dated 26 June 2023.

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, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any ground being advanced by the applicant for the intended judicial review.

14.  In assessing the applicant’s appeal/petition, the Board held an oral hearing on 7 October 2022. The applicant was present and was thus given the opportunity to present her case to the Board in person.

15.  As can be seen from the Board’s Decision, the Board had asked the applicant questions in order to understand her case and her relationship with the NPA, and had discussed relevant country of origin information (“COI”) with the applicant during the Board’s hearing.

16.  The Board laid out its assessment of the applicant’s claim and its credibility in paragraphs 68 to 79 of the Board’s Decision, and it is not necessary to repeat the same here.

17.  In gist, the Board found that the applicant had largely fabricated or exaggerated her claims. The Board found that in certain aspects, the applicant’s narrative was confused, contradictory and made little sense. Her claims with respect to the NPA were also confused and hesitant, and at odds with the COI discussed with her at the Board’s hearing.

18.  Moreover, the Board found that the application’s assertion that if she returned home, the NPA would assume she was going to make a report against them and thus she and her family would be at risk, to be pure speculation. The Board was of the view that given the fierceness of the recent government military reprisals against the NPA as reflected by COI, the NPA would appear to have real problems of a serious pressing nature to worry about rather than pursuing a low-level former member who left some years ago on the basis that she might disclose information against them. The Board further found that the applicant’s claimed involvement in the NPA was nonsensical.

19.  Having considered the claims and evidence in their totality, the Board was not satisfied that the applicant had given a truthful account, and essentially rejected the applicant’s claims altogether.

20.  The Board did not accept that (1) the applicant herself owned land which had been illegally occupied and exploited by PGMC; (2) the applicant unsuccessfully complained to the Mayor about illegal land use, or that she joined the NPA whether for the purpose of enlisting its support to recover her land or for any other reason; (3) the applicant’s aunt Andy recruited the applicant to the NPA or introduced her to the local commander (the Board in fact doubted that the applicant had such an aunt); and (4) the NPA had sent people to look for the applicant at the home of her mother, or that it had any adverse interest in the applicant whatsoever.

21.  Consequently, the Board was not satisfied that the applicant faced any risk of being subjected to serious or significant harm for the reasons claimed if she returned to the Philippines now or in the reasonably foreseeable future, whether from the NPA or anyone else.

22.  The Board had explicitly stated that even if the Board were not confident in the above finding, which was not the case, the Board would nevertheless find that state protection and safe internal relocation would be available to negate any risk to the applicant. Its reasons for such conclusion were in paragraphs 88 to 89 of the Board’s Decision.

23.  Thus, the Board concluded that the applicant failed to establish a case for non-refoulement protection in Hong Kong.

24.  The finding of facts including the assessment of evidence, COI and risk of harm was primarily within the realm of the Board in dealing with her appeal/petition. The applicant’s alleged danger in her home country had been duly assessed by the Board. The Board was entitled to reach its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its decision.

25.  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.

26.  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 intended judicial review has no realistic prospects of success at all, and hence the Leave Application must be dismissed.

Conclusion

27.  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