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HCAL 2809/2019
[2025] HKCFI 2227
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2809 of 2019
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Perez Nema Villa |
Applicant |
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and
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
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Putative Respondent |
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and
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Director of Immigration
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Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)
Following:
Order by Deputy High Court Judge Levy:
1. The Form 86 is amended on the court’s own motion.
2. The Leave Application be dismissed.
Observations for the Applicant:
Introduction
1. By prescribed Form 86 filed on 24 September 2019, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 31 May 2019 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 23 November 2018 (“Director’s Decision”) rejecting the applicant's non-refoulement claim.
2. In her Form 86, the applicant stated her address as the proposed respondent and her name and “22-March-2019” as the interested party. As the Board should have been the proper respondent and the Director the proper interested party, the Form 86 will be accordingly amended on the court’s own motion.
3. At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 15 April 2025. The applicant attended the hearing in person and informed this court that she wished to withdraw the Leave Application as she had married to a Hong Kong resident.
Background
4. The background as taken from the respective decisions of the Director and the Board referred to above can be briefly stated as follows.
5. The applicant is a national of the Philippines. She last arrived in Hong Kong on 12 May 2017 on a foreign domestic helper visa. Upon the premature termination of her employment contract on 11 August 2017, she was required to leave Hong Kong by 25 August 2017. She did not depart, and has overstayed. The applicant surrendered herself to the Immigration Department on 28 August 2017, and raised a non-refoulement claim on 6 September 2017.
6. On 24 February 2018, the applicant gave birth to her daughter in Hong Kong. Her daughter and her daughter’s father are Hong Kong permanent residents. The applicant has stated that she and her daughter’s father intend to marry, but have not yet done so because at the time of the Board hearing, he had not yet officially divorced.
7. The applicant’s claim was considered under all applicable grounds - the risk of torture[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4] under the USM.[5] The claim was based on a fear that if refouled, she would be harmed or killed by her family in the Philippines because she gave birth to her daughter out of wedlock in Hong Kong.
8. In the Director’s Decision, the Director decided against the applicant’s claim on all applicable grounds. Hence, the applicant’s appeal to the Board against the Director’s Decision.
9. On 22 March 2019, the applicant attended a hearing before the Board. At the Board hearing, the applicant gave oral evidence with the assistance of a Tagalog language interpreter.
10. The Board found that while the applicant’s brothers were not supportive of her pregnancy on her own evidence, there was no history of family violence to suggest that her father or brothers would harm her. In addition, the applicant’s evidence indicates that she has a close relationship with several of her sisters. As such, the Board found that there was no real risk of harm. The Board also found that internal relocation would be viable. Thus, the Board dismissed the applicant’s appeal and confirmed the Director’s Decision.
Legal principles applicable to judicial review
11. As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.
Discussion and conclusion
12. The applicant’s Form 86 did not contain any grounds for seeking relief. In her supporting affirmation, the applicant stated that until now, her family has not accepted her.
13. It is plain that the applicant has not condescended to any particulars, in the Form 86 or otherwise, as to what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.
14. The Board’s Decision was arrived at after having carefully examined the applicant’s evidence. The findings stated in [10] above are findings of fact, which the court in a judicial review will not interfere with.
15. Having rigorously examined the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to all the grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness. I find that it was perfectly open to the Board to come to its conclusion that the applicant failed to discharge her burden of proving the asserted fears and risks.
16. For the reasons stated above, and coupled with the fact that this Leave Application was filed late without the applicant giving any explanation for the delay, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.
Application to Withdraw
17. In view of what the applicant’s indication of her decision to withdraw the Leave Application, I asked the applicant to confirm her application under oath. The applicant affirmed that she was married to a Hong Kong resident on 9 February 2024, and is applying for a dependency visa. She no longer requires non-refoulement protection. She also confirmed that she was making the withdrawal application voluntarily and understood the consequences of her withdrawal- that the Board’s Decision would remain binding.
18. Apart from the application to withdraw the Leave Application, there is nothing outstanding in this action. In the circumstances, I make an order to dismiss the Leave Application, and hereby order the dismissal of the Leave Application: see Re Manik Md Mahamudun Nabi [2022] HKCA 471, Ngo Xuan Tuyen v Torture Claims Appeal Board [2024] HKCA 1140
Orders
19. The Form 86 is amended on the court’s own motion.
20. The Leave Application be dismissed.
Dated the 6thday of June 2025
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( Alfred Chan )
for Registrar, High Court |
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 to the Applicant
on 6/6/2025
Perez Nema Villa
Applicant’s ref. no:
Nil
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Sent 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 6/6/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 14748/18/12/105/F960
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 4008/18 (formerly as RBCZ 11807/17) (PSO)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] This refers to the risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap.115.
[2] This refers to the risk of violation of the right to life under Art. 2 of s.8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”).
[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Art 3 of HKBOR.
[4] This refers to the risk of persecution with reference to the non-refoulement principle under Art. 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
[5] This refers to the Hong Kong Government’s Unified Screening Mechanism (“USM”) implemented since 3 March 2014 to process claims for non-refoulement protection. For a detailed description of the USM, see the judgment of Zervos J in HKSAR v Vu Thang Duong & Anor [2015] 3 HKC 293.
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