DE GUZMAN LORNA FRANCIA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 752/2023

[2026] HKCFI 2490

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 752 of 2023

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;

The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By a “Notice of application to apply for leave for judicial review” in the prescribed Form 86 filed on 17 May 2023, 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 4 May 2023 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 30 August 2021 rejecting the applicant's non-refoulement claim on all applicable grounds[1]. The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL000752_2023_files/the_Board's_Decision.pdf

2.  The basis of the applicant’s claim was that, if refouled to Philippines, she would be harmed or killed by the man to whom her company lent money after she filed a case against the latter for a bounced cheque. The Board’s reasoning and findings were set out in detail in the Board’s Decision 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.

3.  The applicant has not requested for an oral hearing when she filed the Leave Application. In the circumstances, this court will determine the Leave Application without a hearing: O.53, r.3 (3) of the Rules of the High Court.

Discussion

4.  A leave application operates as a ‘filtering’ process. Hence, there is no requirement or expectation to give elaborate reasons for my decision.[2] It is therefore sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

5.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[3], and further to make full and frank disclosure of all material facts to be verified by an affidavit. In the Form 86, the applicant averred that the Board had taken into account irrelevant matters when assessing the relevant risk, and that it had erred in finding the availability of state protection. The supporting affirmation provided no such grounds.

6.  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.[4]  In the present case, the Board accepted the credibility of the applicant’s evidence. However, it found that the applicant would not be subjected to risks of harm if refouled as it found that in the past, Romeo never inflicted injuries on the applicant. The past ill-treatment was not serious and did not meet the requisite level of severity. It further found that state protection and internal relocation would be reasonably available. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

7.  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 averments in the Form 86 were general and did not condescend to particulars. 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[5].

Order

8.  The applicant’s application for leave to apply for judicial review 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