GIRON PRINCESSA JOVILLANO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1848/2020

[2025] HKCFI 4564

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1848 of 2020

  Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

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

1.   The Applicant’s Form 86 should be amended to name only the TCAB as the putative respondent and only the DOI as a putative interested; and

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

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 16 September 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review of a decision by the Torture Claims Appeal Board (the “TCAB”) dated 12 August 2020 (the “TCAB Decision”), which affirmed a decision by the Director of Immigration (the “DOI”) dated 29 November 2017 in refusing the Applicant’s non-refoulement protection claim.  She named the TCAB and the Immigration Department both as the proposed respondents and interested parties.

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

3.  The TCAB Decision concerned only the Applicant’s claim based on BOR2 risks as her application based on the other three applicable grounds under USM had been made and refused by the DOI in 2011 and 2015, and the refusal was affirmed by the TCAB in 2017.

4.  The Applicant requested for a hearing and she attended the same.  When asked if she had anything to add, she handed up various hospital documents showing her appointments for orthopaedic issues. However, these documents are not relevant to the issues in this application.

Background

5.  The Appellant is a national of the Philippines. She seeks non-refoulement protection on the basis that she would be harmed or killed by her former boyfriend if she was returned.  Her personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be assessed through a hyperlink[1], and I shall not repeat the same herein.

Discussion

6.  In a judicial review, this court does not provide a further avenue of appeal.  Though in non-refoulement case an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision-makers.  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, [14(1)]).  There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anor (2007) 10 HKCFAR 676).

7.  In her affirmation filed in support of this application, the Applicant did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision.

8.  Looking at the TCAB Decision, the TCAB took into account the Applicant’s case and all the materials placed before it [2-8, 12-14], including her testimony given at the hearing before it [15-20] and assessment on her credibility [21-22], in finding that her allegations were not made out.

9.  Applying the correct principle on assessing BOR2 risks [9-11], the TCAB came to conclude that it was not made out [23].

10.  I therefore do not see any error of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.

Conclusion

11.  For the above reasons, I am not satisfied that this court should intervene by way of judicial review.  I therefore 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