LUCAGBO AMOR MARCIAL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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 the Torture Claims Appeal Board/Non‑refoulement Claims Petition Office as the Putative Respondent and the Director of Immigration as the Putative Interested Party.

2.  No extension of time be granted for the application for leave to apply for judicial review.

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

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 11 May 2022 (the “Form”), the Applicant applied for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”) dated 18 January 2022 (the “Board’s Decision”), which affirmed the decision of the Director of Immigration dated 2 September 2021 (the “Director’s Decision”).

2.  In the Form, the Applicant named both the Board and the Director as the proposed interested parties.  Pursuant to Order 20, rule 8 and/or Order 53, rule 3(6) of the Rules of the High Court (Cap 4A), I amend the Form on my own motion to name the Director as the putative interested party only.

3.  The Applicant requested an oral hearing for the application.  The hearing took place on 3 February 2026 and the Applicant attended in person.  Prior to the hearing, the Applicant also submitted written submissions on or about 26 January 2026.  At the hearing, the Applicant indicated that she had nothing further to add to the application.

Background

4.  The Applicant’s background, the basis of the Applicant’s claim and the arguments the Applicant advanced were set out in detail in the Board’s Decision. It is not necessary for me to repeat the same here.  The hyperlink to the Board’s Decision is included below for reference.[1]

Discussion

5.  The Board’s Decision was issued on 18 January 2022.  The Form was however only filed on 11 May 2022.  The present application was therefore filed out of time for about 1 month.  

6.  No application for extension of time to file the present application was made by the Applicant.  The Applicant however explained in the Form that the reason for the late filing was that she did not receive the Board’s Decision from the Board, but was only informed by the Immigration Department.

7.  In considering whether to extend the time for applying for leave for judicial review, it is well established that the Court should have regard to, inter alia, the following factors: (1) length of the delay; (2) explanation of the delay; (3) merits of the substantive application; (4) prejudice; and (5) questions of general public importance.  See Re Thomas Lai [2014] 6 HKC 1, at [43]-[45]; AW v Director of Immigration and William Lam [2016] 2 HKC 393 (CA), at [27].

8.  In the present case, there was a delay of about 1 month.  I do not accept the Applicant’s alleged reason for the delay.  According to the record available to the Court, the Board issued its decision to the Applicant by post on 18 January 2022.  In any event, assuming that the Applicant was only informed of the Board’s Decision by the Immigration Department, this was still not a proper reason for delaying the present application.

9.  More importantly, I am not satisfied that the Applicant’s intended application for judicial review of the Board’s Decision is reasonably arguable with realistic prospects of success.  See Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676, at [14]-[17].

10.  The applicable legal principles in this area are well established.  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decisions of the Board due to the seriousness of the issues at hand, the Court should not usurp the role of the Board.  Assessment of the evidence, country of origin information materials, risk of harm, state of 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, procedural unfairness or irrationality in the decision of the Board.  See Nupur Mst v Director of Immigration [2018] HKCA 524, at [14].

11.  In the Form, the Applicant contended that the Board was in breach of procedural fairness in that:

(1)   It is trite law that a hearing before the Board is a re-hearing or a de novo hearing, and the Board is required to consider afresh the original decision and arrive at its own determination in respect of the claims.[2]

(2)   The Board’s Decision to refuse the Applicant’s appeal was unreasonable or irrational in the public law sense, or was a result of procedural errors or unfairness.

(3)   The Board unlawfully fettered its discretion by refusing the Applicant’s appeal on the ground that it did not satisfy the requirements.

(4)   The Board failed to meet the greater care and duty owed to a self‑represented claimant.

(5)   The Board acted in a procedurally unfair manner in dealing with the Applicant’s appeal.

(6)   It must be kept in mind that the Applicant’s life and limb are in jeopardy and the Applicant’s fundamental human rights not to be subjected to torture was involved.

(7)   In dismissing the Applicant’s appeal, there was no indication that the Board interacted with the facts of the Applicant’s claim, conducted any analysis of the supporting documents or turned its mind to the ground under consideration being the risk of violation of the Applicant’s right to life under BOR 2.

(8)   The Applicant would face hardship if she was to return to her home country and the Board significantly relied on source of news which was not officially recognised, or was simply hearsay.

(9)   The Board relied on some cases which were outdated considering the dramatic changes.  The lack of credible source of information resulted in the Board making groundless speculation.

(10)   Although the Applicant’s problems in her home country were very severe and she had already submitted all the documents for her claim, the Board did not meet the greater care obligation and made the Applicant disappointed.

12.  In her written submissions, the Applicant further contended that:

(1)   Her life would not be safe in her home country.  She would be subject to various risks of harm if she were to return to the Philippines.

(2)   The Board made its decision without considering her claims seriously.

(3)   Although the Applicant’s problems in her home country were very severe and she had already submitted all the documents for her claim, the Board did not meet the greater care obligation and made the Applicant disappointed.

(4)   The Board was wrong as a matter of law for not having applied the principle of irrationality to its decision.

(5)   “High standard of fairness” was required in the determination of a torture claims on the part of the Board, but it reviewed the matter lightly.

(6)   The Board’s Decision had the effect of finally disposing her torture claim and making her liable to be removed from Hong Kong to her home country where her life would not be safe.  This entailed real and significant implications to her substantive right not to be subject to torture and her right to non-refoulement protection.  The Board’s Decision had a significant effect on her torture claim.

(7)   The Board was wrong as a matter of law for not having applied the principle of procedural unfairness to the Director’s Decision, and the Board was required to give reasons justifying its decision.

(8)   The Board (and the Director) did not analyse the Applicant’s claims properly.

(9)   The Board was unreasonable in refusing the Applicant’s claims.

(10)   The Board (and the Director) failed to give the Applicant’s sufficient chance to arrange relevant evidence to her claims.

(11)   It must be kept in mind that the Applicant’s life and limb were in jeopardy and the Applicant’s fundamental human rights not to be subjected to torture was involved.

(12)   The Applicant would face hardship if she was to return to her home country and the Board significantly relied on source of news which was not officially recognised, or was simply hearsay.

(13)   The Board was irrational in its failure to evaluate and analyse whether there was a consistent pattern of gross and mass violation of human rights in her home country.

(14)   The Board was irrational in its failure to analyse and assess whether state protection existed in her own country[3] and misdirected itself as to the extended meaning of state protection.

13.  I do not consider any of the Applicant’s contentions meritorious.

14.  The points at [11(1)], [11(6)], [12(6)], and [12(11)] above are merely stating the general legal principles or the general consequences of the Board’s Decision.

15.  The point at [12(1)] above is a re-argument of the case that was not accepted by the Board.  

16.  The points at [12(13)] and [12(14)] are not correct as the Board had considered the country of origin information (“COI”) and found that while there was support of the Applicant’s claim that the police of the Philippines were corrupt and inefficient, there was also some other information in the COI of the Philippines suggesting that reforms had been on-going and that the Philippines government had taken practical steps to improve the police’s effectiveness and to monitor their conduct (see [40] of the Board’s Decision).

17.  As to the remaining points, they are nothing but vague assertions without particulars:

(1)   The Applicant has not identified how the Board acted unlawfully, unfairly, unreasonably or irrationally.

(2)   She did not explain how the Board failed to meet the alleged greater care and duty, or failed to analyse the Applicant’s claims properly.

(3)   She failed to specify how the Board reviewed the matter lightly, or how the Board failed to give the Applicant’s sufficient chance to arrange the relevant evidence for her claims.

(4)   Nor did she identify what source of news or cases relied upon by the Board was/were “not officially recognised”, hearsay, or outdated. 

18.  In the present case, I am satisfied that the Board carefully considered the Applicant’s evidence.  A hearing was conducted on 13 December 2021.  The Board’s Decision was comprehensive with adequate reasons.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, I do not find any errors of law, procedural unfairness or irrationality in the same.  The Board was entitled to come to the conclusions it did and reject the Applicant’s claims (see, in particular, [32]-[52] of the Board’s Decision).  I am not satisfied the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with realistic prospects of success.

19.  On the question of prejudice, none arises from my refusal to extend time for the Applicant to pursue an unmeritorious judicial review.  On the contrary, I consider that it is important to adopt a disciplined approach in a time extension application to prevent unnecessary disruption to public administration.

20.  Lastly, I do not consider that the present application raises any question of general public importance.

21.  As held in Re Zunariyah [2018] HKCA 14, at [23], leave application operates as a filtering process and there is no requirement or expectation to give elaborated reasons for my decision.  It suffices for me to state that in reaching this decision, I have considered all the relevant documents and evidence before me.

Conclusion

22.  For the reasons above, I refuse the Applicant’s leave application and make the orders as set out above.

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