PANTE LUISA TUPPIL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2532/2019

[2025] HKCFI 1342

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2532 of 2019

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 documents and oral submissions by the Applicant in open court;

Leave to apply for Judicial Review be refused.

Observation for the Applicant:

Introduction

1.  This is an application by Madam Pante Luisa Tuppil (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 22 July 2019 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 31 August 2017 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant and the Claim

2.  The Applicant is a Filipino. She was born on 5 January 1970 in Cagayan, Philippines. She had received 10 years of education and had 24 years of working experience.

3.  The Applicant claimed that her ex-boyfriend (“E”) in the Philippines would harm or kill her if she returned to the Philippines. She claimed that she met E in around 1993 and they had a child in 1994.

4.  The Applicant came to Hong Kong to work as a foreign domestic helper in around 2006. She met her husband in Hong Kong (“IA”) in October 2011. They married on 12 January 2012.

5.  The Applicant gave birth to her daughter with IA in September 2012. She divorced with IA in August 2017.

6.  The Applicant claimed that E knew about her marriage and her daughter. E told his neighbour that he would kill the Applicant if she returned to the Philippines.

7.  The Director assessed the Claim on the following grounds under the unified screening mechanism (“USM”), namely:

(a)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“Ordinance”) (“torture risk”);

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR”) (“BOR 2 risk”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of the BOR (“BOR 3 risk”); and

(d)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees (“Refugees Convention”) (“persecution risk”).

8.  By the DOI Decision, the Director refused the Claim. The Applicant later filed an appeal/petition to the Board (“Appeal”). By the Board’s Decision, the Board affirmed the DOI Decision. The Board rejected and dismissed the Appeal.

9.  On 30 August 2019, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the Board’s Decision. The Applicant filed her supporting affidavit on the same day (“Supporting Affidavit”). In the Form 86, the Applicant named the Board as the proposed respondent and the Director as the interested party.

Legal principles applicable to judicial review

10.  In a judicial review, the court does not step into the shoes of the decision makers.

11.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“ The role of the Court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are 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 and COI [i.e. country of origin information] materials and 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 errors of law or procedural unfairness or irrationality in the decision of the Board: see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.”

12.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

13.  In the Form 86, the Applicant did not put forward any ground for her intended judicial review.

14.  In the Supporting Affidavit, the Applicant put forward the following grounds for her intended judicial review:

(1)  the Board unlawfully fettered its discretion by refusing the Appeal;

(2)  the Board failed to fulfill its duties owed to a self-represented claimant;

(3)  the Board’s Decision was unreasonable or irrational in the public law sense, had procedural errors or was unfair;

(4)  the Applicant’s right not to be subject to torture was engaged;

(5)  the Board acted in a procedurally unfair manner; and

(6)  the Board relied on sources of news which was not officially recognized or was hearsay.

15.  All the aforesaid grounds referred to in the Supporting Affidavit were bare assertions without particulars and not supported by evidence. The Applicant attended the court hearing of 4 March 2025 (“Court Hearing”) but was unable to provide any particulars for the aforesaid grounds referred to in the Supporting Affidavit. Without particulars and supporting evidence, these grounds are not reasonably arguable.

16.  The Board noted that E had never physically abused the Applicant. The Board was of the view that E made the death threat in a spur of the moment. E had never confronted the Applicant personally or issued death threat directly against her. The Board did not accept that E posed a real risk to the safety of the Applicant upon her return and did not accept that she was in need of non-refoulement protection.

17.  The Board carefully considered country of origin information (i.e. COI) materials and found that state protection would be available to the Applicant in the Philippines (§48 of the Board’s Decision). It was her own decision not to seek assistance from the Filipino police and it was pure speculation on her part that the police would refuse to act on her complaint.

18.  The Board also found that internal relocation would be viable to the Applicant.

19.  As pointed out in the Nupur Mst case (supra), assessment of evidence, country of origin information materials, risk of harm, availability of state protection and viability of internal relocation were primarily within the province of the Board. The court would not intervene by way of judicial review unless there were errors of law or procedural unfairness or irrationality in the decision of the Board.

20.  The Applicant said at the Court Hearing that she wanted to stay in Hong Kong to take care of her child and it was still dangerous for her to return to the Philippines as E would come to her village to find her. She said that the Filipino authorities would not investigate into complaints without bribes. However, she was unable to identify any error of law, procedural unfairness or irrationality in the Board’s Decision.

21.  In disputing the findings on assessment on evidence, risk of harm, country of origin information materials and availability of state protection, the Applicant sought to challenge the findings of fact of the Board which is not permissible in a judicial review unless in making such findings there were errors of law or procedural unfairness or irrationality. I find none in this case.

22.  Having rigorously examined the Board’s Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM for seeking non-refoulement protection; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness.

23.  In §§39-57 of the Board’s Decision, the Board assessed the Claim under each of the applicable grounds under the USM. The Board found that the treatment the Applicant received did not fall within the meaning of “torture” under Section 37U of the Ordinance and there were no substantial grounds for believing that the Applicant would be liable to be subjected to the torture risk or the BOR 3 risk if she returned to the Philippines. The Board did not accept that the Applicant had a well-founded fear of the persecution risk. The Board found that her fear of ill-treatment had nothing to do with any of the reasons referred to in Article 33 of the Refugees Convention. The Board also found that there was nothing in the Applicant’s case to support her claim under the BOR 2 risk.

24.  It was on such basis that the Board found that the Applicant had failed to prove her entitlement to non-refoulement protection. These are findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality. In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The proposed judicial review is not reasonably arguable and has no realistic prospects of success.

Conclusion

25.  In the premise and having considered the Board’s Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.

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