GALICIA EBONA TAMBONG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 940/2022

[2026] HKCFI 1904

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 940 of 2022

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 Director of Immigration as the Putative Interested Party and the Decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office dated 15 August 2022 as the decision in respect of which relief is sought.

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

Observations for the Applicant:

Introduction

1.  By Form 86 dated 15 September 2022 (“Form 86”), the Applicant seeks leave to apply for judicial review (“Leave Application”) against the Decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“Board”) which, as stated below, was dated 15 August 2022 (“Board’s Decision”), which affirmed the Decision of the Director of Immigration (“Director”) dated 30 June 2021.

2.  The Applicant did not request an oral hearing.  I determined her Leave Application on the papers accordingly: O.53, r.5(3) of the Rules of the High Court (Cap 4A).

3.  The Form 86 misstated the date of the Board’s Decision and failed to name the Director as the putative interested party.  I therefore amend the Form 86 on my own motion to state the Board’s Decision dated 15 August 2022 as the decision in respect of which relief is sought and to name the Director as the putative interested party.

Background

4.  The Applicant is a national of the Philippines. Her background and the basis of her application for non-refoulement were set out in detail in the Board’s Decision at this hyperlink.[1]  I will not repeat them here.  Unless otherwise specified, I adopt the abbreviations in the Board’s Decision.

5.  In short, the Applicant claimed to be in fear of her ex-boyfriend, who she said had threatened to kill her over financial disputes between them.  The Applicant claimed that her ex-boyfriend repeatedly made death threats towards her for about 1.5 months when they were both in the Philippines, threatened to kill her over the phone and via online messenger after she left for Hong Kong, and went to visit the Applicant’s mother to declare that he would kill the Applicant unless she paid him half of the sale proceeds of a house.

Discussion

6.  Leave application is meant to be a filtering process and the court is not expected to give elaborate reasons for its decision: Re Zunariyah [2018] HKCA 14 at §23. I therefore set out below brief reasons for my decision, which I have reached upon considering all the materials before me.

7.  The court’s role in judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  While the court adopts in non-refoulement cases an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board. Assessment of evidence and COI 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: Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(1).  There must be a reasonably arguable case, namely one which enjoys a realistic prospect of success, before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 at §§14-17.

8.  In a proper Form 86, an applicant is required to state the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (HCAL 21/2015, 22 December 2016) at §142.  He or she is also under a duty to make full and frank disclosure of material facts: Kan Hung Cheung v The Director of Immigration [2008] HKC 323 at §§14-17.

9.  In this Leave Application, the Applicant has not stated any ground of judicial review.  She has not identified any error of law or procedural unfairness or irrationality in the Board’s Decision to demonstrate a reasonably arguable case.

10.  In any event, I have reviewed the Board’s Decision and I do not detect any error of law, procedural unfairness or irrationality.  The Board assessed the evidence in detail and gave adequate reasons for its decision.  In particular:

(1)   In the Board’s assessment, there was not a real chance that the Applicant’s ex-boyfriend would carry out his threats against her, or would physically harm or kill her.  The Board paid regard to the absence of evidence that the ex-boyfriend had acted in a violent or abusive manner towards the Applicant or her family or that he was of a violent disposition.  It further noted that the Applicant was not able to point to anything that might show the ex-boyfriend was serious about his verbal threats: §§99, 102-103.

(2)   In any event, the Board noted that the police were summoned upon the incident in 2017, promptly arrived and responded to the heated verbal argument between the ex-boyfriend and the Applicant over money matters by separating the parties and told them to settle the matter. There was no evidence that the police neglected their duties: §§103, 113.

(3)   Further still, the Board considered there was in any event no evidence that the ex-boyfriend had any ability to track down the Applicant outside of his locality: §§123, 126.  The Board took the view that it would be a reasonable and practicable option for the Applicant to relocate to Manila, having regard to her personal circumstances, work experience and the relevant COI: §§127-134.

11.  In the premises, I conclude that the Applicant’s intended challenge against the Board’s Decision is not reasonably arguable. 

Conclusion

12.  I make an order that the Form 86 be amended in the manner set out above and that the Leave Application be 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