METODA GEMMALYN GALANG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1724/2020

[2025] HKCFI 4389

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1724 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 be amended to name the TCAB Decision as the decision sought to be reviewed; 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 26 August 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review of the decision by the Torture Claims Appeal Board (the “TCAB”) dated “March 1, 2019”. She named the TCAB as the proposed respondent and the DOI as an interested party.

2.  From the case record, there was a decision by the TCAB dated 20 December 2019 (the “TCAB Decision”), which affirmed the decision of the Director of Immigration (the “DOI”) dated 5 November 2018 in refusing the Applicant’s non-refoulement protection claim.

3.  I take it that the Applicant is seeking judicial review of the TCAB Decision and I amended the Form 86 on my own motion accordingly.

4.  The Applicant requested for a hearing of this application and she attended the same.

5.  This application is plainly out of time and there is no application made for extension of time. Nonetheless, I would still proceed to consider the merits of the application in determining whether extension of time should be granted to entertain this application.

Background

6.  The Applicant is a national of the Philippines. She seeks non-refoulement protection on the basis that her life will be in danger in the hands of her ex-boyfriend, who came from a family which is involved in a drug syndicate, unless she was to marry him. 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

7.  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).

8.  In her Form 86 and affidavit in support of this application, the Applicant did not point to any error of law, procedural unfairness or irrationality of the TCAB.

9.  At the hearing on 2 September 2025, the Applicant said that she was “not satisfied” with the result as she was not able to attend the hearing before the TCAB.

10.  As can be seen from the TCAB Decision, the Applicant did fail to attend the oral hearing scheduled on 1 March 2019 and further failed to respond to the request for explanation of her absence [24-27]. In fact, the Applicant had failed to attend an interview with an Immigration Officer scheduled on 19 October 2018 as well, citing childcare responsibilities [5].

11.  Upon being asked at the 2 September 2025 hearing, she confirmed that she did receive notification of the date, time and venue of the hearing before the TCAB but she was unable to attend as she had to take care of her children. She later further said that nobody had reminded her to attend the hearing.

12.  Her attendance at the 2 September 2025 hearing showed clearly that if she wanted to, arrangements could in fact be made to enable her to attend a scheduled hearing before any tribunal. There is really no basis for her to raise any complaint with regard to procedural fairness in such circumstances.

13.  Looking at the TCAB Decision, all the available evidence was before the TCAB, including the Applicant’s Interview Report and NCF Form [23]. The TCAB thoroughly considered the same, bearing in mind the correct burden and standard of proof [31-33], before coming to the conclusion that that the Applicant’s allegations were not made out [34-36].

14.  The TCAB then proceeded to analyse each of the four applicable grounds under the USM and concluded that none was made out [38-63].

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

Conclusion

16.  For the above reasons, I am not satisfied that this court would have intervened by way of judicial review even if time were to be extended. 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