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HCAL 3481/2019
[2025] HKCFI 3637
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3481 of 2019
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BETWEEN
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Urbiztondo Jocelyn Marcos |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative |
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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 be amended on the court’s own motion.
2. The applicant’s application for leave to apply for judicial review be dismissed.
Observations for the Applicant:
Introduction
1. By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 25 November 2019, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decisions of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 21 October 2019 (“Board’s Decision”) dismissing the applicant’s appeal against the decisions of the Director of Immigration (“Director”) dated 21 August 2017 (“Director’s Decisions”) rejecting the applicant’s non-refoulement claim on the BOR 2 risk[1] ground. The Board’s Decision can be viewed at the following hyperlinks: -
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003481_2019_files/the_Board's_Decision.pdf
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003481_2019_files/Earlier_Board's_Decision.pdf
2. In her Form 86, the applicant did not name any interested party. As the Director should have been the proper interested party, the Form 86 will be amended accordingly.
3. Before the Director’s Decision and the Board’s Decision, the Director on 2 April 2015 had earlier dismissed the applicant’s refoulment claim on the risk of torture[2], BOR 3 risk[3] and persecution risk[4] under the USM.[5] The applicant’s claim then was that she would be harmed or killed by her husband and the loan shark for an unsettled loan. By the decision of the Board dated 24 December 2015, the Board dismissed her appeal against the Director’s earlier decision. The applicant’s application for leave to apply for judicial review against the Board’s earlier decision was dismissed on 27 June 2016 under the case number of HCAL 3/2016.
4. After the dismissal of the applicant’s claims on the three risks state above, the Director assessed the applicant’s claim solely on the ground of BOR 2 risk. When the Board considered the applicant’s appeal against the Director’s Decision, there was new information that the applicant had become pregnant with a Pakistani man and her husband knew about it. There was a claimed fear that her husband would kill her if she were to return to Philippines.
5. The Board’s reasoning and findings were set out in detail in the Board’s Decisions and it is not necessary for me to repeat them. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.
6. Pursuant to the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 31 July 2025. A notice of hearing with a reminder[6] of the consequence of absence dated 17 June 2025 was sent to the applicant’s last known address by ordinary post. The applicant was absent from the hearing. Before the hearing, phone calls were made to the applicant’s given telephone number, and the applicant confirmed that she would attend the hearing. Since the information before this court shows that the said notice of hearing has not been returned undelivered through the post, and that the applicant had been separately notified of the hearing by phone, this court will dispose of the Leave Application on paper according to the materials already placed before the court.
Discussion
7. The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[7] It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.
8. In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[8], and further to make full and frank disclosure of all material facts to be verified by an affidavit.
9. In her supporting affirmation, the applicant stated that:
(a) She wished to challenge the Board’s decision in which it determined that she failed to establish her non-refoulement claim under the principles of torture or BOR 3 or BOR 2 or persecution;
(b) Her life was still in danger in her country;
(c) The Director rejected her claim without proper inquiry and without carefully understanding her situation.
10. As the Courts have repeatedly stated, 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.[9] In the present case, when the applicant attended the hearing before the Board, she confirmed that the problem regarding the outstanding loan had been resolved. As to the new claimed fear of her husband regarding the applicant’s pregnancy, the Board found that the claim was a bare assertion and further that the applicant had in fact no personal contact with her husband since 2010. The Board therefore concluded that the applicant failed to establish her claim under BOR 2 risk, and dismissed her appeal.
11. Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness. The applicant’s written grounds about the three risks had already been disposed of. The other two written grounds are either not concerned with the Board’s Decision or vague. The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision. The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[10].
Orders
12. The Form 86 be amended on the court’s own motion.
13. The applicant’s application for leave to apply for judicial review be dismissed.
Dated the 22nd day of August 2025
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( Alfred Chan )
for Registrar, High Court
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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 22/8/2025
Urbiztondo Jocelyn Marcos
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 22/8/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
BOR 967/17/9/5/F76, USM 1383/15/4/75/F82
Director of Immigration
Putative Interested Party’s ref. no.: RBCZ 9001686/16 (Formerly RBCZ 858/14), ImmD/QA T/C 122/15 formerly known as RBCZ/858/14
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] 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”)
[2] This refers to the risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap.115.
[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.
[6] “If the Applicant does not appear at the hearing, he/she will be deemed to have waived his/her right to make oral submissions at the hearing and the Court will deal with his/her application according to the paper already placed before the Court”.
[7] Re Zunartyah [2018] HKCA 14 at [23].
[8] Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015, 22 December 2016 at [142].
[9] 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.
[10] Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676
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