PRESENTA JESSIECA CASTILLO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Application for Leave to Apply for Judicial Review

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

Following:

1.   Form 86 be amended, naming only the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office as the Putative Respondent and naming only the Director of Immigration as the Putative Interested Party.

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

Observations for the Applicant:

Introduction

1.   By a Form 86 filed on 30 November 2022 (the “Form 86”), the Applicant applied for leave to apply for judicial review against the decision by the Torture Claims Appeal Board (the “TCAB”) dated 24 November 2022 (the “TCAB Decision”), which affirmed the decision of the Director of Immigration (the “DOI”) dated 16 December 2021 (the “DOI Decision”).

2.   I amend the Form 86 on my own motion to name only the TCAB as the putative respondent and the DOI as the putative interested party.

3.  The Applicant requested for a hearing of this application and attended the same. When asked if she had anything to add, she said that she has a pending medical operation in the hospital next year for the removal of the lump in the breast.

Background

4.  The Applicant is a national of Philippines. In gist, she fears that she will be killed by her former live-in partner if she were to return. The Applicant’s personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be viewed through a hyperlink[1]. I shall therefore not repeat them. Unless otherwise specified, TCAB’s abbreviations and descriptions are adopted herein.

Discussion

5.  The leave application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at [23].  It is sufficient to state my observations after considering the TCAB Decision and the materials adduced by the Applicant.

6.  I remind myself that in a judicial review, this court does not provide a further avenue of appeal. While I also remind myself that in non-refoulement cases, I would adopt an enhanced standard in scrutinizing the decision of the TCAB given the seriousness of the issue at hand, this court would not usurp the role of the TCAB, which together with the DOI are the primary decision-makers.  A finding of fact is exclusively within the realm of the TCAB, and 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 at [14(1)].  There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

7.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (unreported, HCAL 21/2015, 22 December 2016) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

8.  The Applicant did not state any grounds on which the relief is sought other than that “my life is still in Danger in my Country”. Thus, it did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision.

9.  As can be seen from the TCAB Decision, the TCAB took into account all the evidence available and found that on the basis of the same, applying the correct legal principles in respect of all applicable grounds under the Unified Screening Mechanism, the Applicant’s allegations were insufficient to make out any of the applicable grounds [34-64]. In particular, the TCAB found that the Applicant had made bare assertions and provided no objective proof that her former partner would harm her apart from photographs that were not particularly relevant to her claim [36, 60]. Taking into consideration of all material evidence, the TCAB thought the Applicant’s claim to be barely credible and even if there was some element of truth behind the claim, it did not engage in any of the applicable grounds necessary for protection [54]. The TCAB found that she had a clear alternative motivation for surrendering, that being her medical condition, but it would not affect the underlying claim [56]. The TCAB noted that the Applicant’s claim arose from events that took place in 2013 and due to her former partner finding out that she had found a boyfriend, and questioned why her former partner would still be bothered after about 10 years apart [46, 48]. Further, the TCAB noted the Applicant had stated that she had not been in direct contact with her former partner since 2014 and was worried he might harm her based only on hearsay from a mutual friend in late 2020 or 2021 [60]. In any event, state protection [61-64] and internal relocation [65-69] was available to her if she returned.

10.  I have also considered the Applicant’s oral submissions. They do not assist her case:

a.   The Applicant’s personal circumstances are not valid grounds or relevant consideration in relation to her own non-refoulement claim: Oguzie Ikechukwu Charles v Torture Claims Appeal Board, unreported, CACV 469/2021, 21 January 2022, [2022] HKCA 135, at [20] and Re Adeel Muhammad, unreported, CACV 71/2022, 7 August 2023, [2023] HKCA 948 at [7].

b.   If and insofar as the Applicant seeks to claim that there has in fact been a significant change of circumstances or new information relevant to her non-refoulement claim, that may be relevant to the potential procedure in ss.37ZO and 37ZP Immigration Ordinance (Cap 115), but it is not relevant to the present application (Amandeep Kumar v Torture Claims Appeal Board [2019] HKCA 1369 at §13; Poinem v Torture Claims Appeal Board [2020] HKCA 911 at §15).

11.  All in all, I do not see any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny. The Applicant’s intended challenge to the TCAB Decision is not reasonably arguable, and accordingly the application for leave to apply for judicial review 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