MAXIMO IVY JANE HERMOSO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 161/2022

[2026] HKCFI 1774

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 161 of 2022

Application for Leave to Apply for Judicial Review

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

Following:

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

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

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

Introduction

1.  By Form 86 filed on 22 February 2022, the Applicant seeks leave to apply for judicial review (the “Leave Application”) of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”) (the “Board’s Decision”). By that decision, the Board confirmed the decision of the Director of Immigration dated 20 July 2021 (the “Director’s Decision”), which had rejected her non-refoulement claim on all applicable grounds under the Unified Screening Mechanism (USM).

2.  The Applicant’s Form 86 only names the Director of Immigration as the putative respondent but contains the reference to the Board’s Decision dated 20 July 2021. The Board’s Decision in this case is dated 21 January 2022. As the Applicant had already appealed the Director’s Decision to the Board which was conducted by way of rehearing, the Board’s Decision effectively supersedes the Director’s Decision.[1] Hence, the Director’s Decision is not a decision which is susceptible to judicial review.

3.  The Applicant attended the oral hearing. It must be clear that the Leave Application is directed against the Board’s Decision dated 21 January 2022 exhibited to her Affirmation.

4.  The Applicant’s background, the basis of her claim and the arguments she advanced had been set out in detail in the Board’s Decision. It is not necessary for me to repeat the same here. Unless otherwise specified, the abbreviations and descriptions used in the Board’s Decision, the hyperlink[2] to which is included below, are also adopted herein.

Discussion

5.  Judicial review does not operate as a further avenue of appeal. The Leave Application operates as a “filtering” process and there is no requirement or expectation to give elaborate reasons for my decision. The primary decision makers are the Director of Immigration (the “Director”) and the Board. Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence, country of origin information (COI) materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are error of laws, procedural unfairness or irrationality in the decision of the Board.[3]

6.  In seeking to challenge the Board’s Decision, the Applicant ought to have clearly and precisely identified the grounds relied upon in the Form 86 and her supporting affirmation.[4] It would appear that the Applicant is relying on the following grounds:-

(1)  Her case was not properly presented due to lack of proper legal advice; and

(2)  The Board’s Decision was not made fairly.

7.  I have scrutinized the Board’s Decision and come to the view that none of the aforesaid grounds can be established or considered as valid or effective public law grounds.

8.  First, these grounds merely consist of generic, vague and unparticularized assertions using selected keywords and phrases without reference to any underlying facts or matters establishing why, how and where each of those complaints arise in relation to the Board’s Decision. General assertions without particulars are not effective grounds and cannot assist the Applicant.[5]

9.  Second, as regards the challenge based on lack of legal advice or representation (as the case may be), neither the high standard of fairness land down in Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings.[6] The Applicant already had the benefit of legal representation or assistance in presenting his case to the Director.

10.  Third, the Board was acutely aware of the Applicant’s claim that she is in fear of being harmed or killed by her ex-boyfriend i.e. Roberto, if she were refouled to the Philippines. The Applicant also attended the hearing before the Board. The Board had assessed the material facts and evidence of the Applicant’s claim including the COI materials and was entitled to find no or no reliable evidence to show (1) Roberto would harm or kill her if she were to return to Philippines; (2) she faces risk throughout the Philippines; (3) she suffered injuries to the required severity. The Board was also of the view that state protection would be available and internal relocation is viable.

11.  Fourth, in all circumstances, I can discern no error of law or procedural unfairness or irrationality on the part of the Board in the assessment and rejection of the Applicant’s claim. The Board was entitled to come to the conclusions it did and reject the Applicant’s claim.

Conclusion

12.  Accordingly, I am not satisfied that the Applicant’s intended application for judicial review of the Board’s Decision is reasonably arguable with any realistic prospects of success.[7] I 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