BASARTE JEPHANY PADILLO v. TORTURE CLAIMS APPEAL BOARD

HCAL 274/2020

[2025] HKCFI 1713

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 274 OF 2020

  Application for leave to apply for judicial review

  NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

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

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, the name of the putative interested party be amended to “Director of Immigration” and the decision in respect of which relief is sought be amended to “The Decision of the Torture Claims Appeal Board dated 18 December 2019”.

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

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated 23 January 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision dated 9 November 2019. However, no such decision exists.

2.  The decision of the Director of Immigration (“the Director”) rejecting the applicant’s claim for non-refoulement protection on all the applicable grounds under the Unified Screening Mechanism (“the USM”) was made on 24 July 2019. The decision of the Torture Claims Appeal Board (“the Board”) confirming the Director’s said decision was made on 18 December 2019 (“the Board's Decision”). The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000274_2020_files/the_Board's_Decision.pdf

3.  It is clear that the applicant should be applying for leave in respect of the Board’s Decision in the Leave Application.

Amendments

4.  The applicant named the “NON-REFOULEMENT CLAIMS PETITION OFFICE” as the putative respondent and “LALA-AN, JONATHAN EDOROT” as the putative interested party in Form 86, when only the Board should be named as the putative respondent and the Director should be named as the putative interested party. Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board” and the name of the putative interested party is amended to “Director of Immigration”.

5.  As aforesaid, the applicant should be applying for leave in respect of the Board’s Decision, and hence, on this court’s own motion, the decision in respect of which relief is sought is amended to the Board’s Decision.

The applicant’s case

6.  It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

7.  In sum, the applicant claimed for non-refoulement protection because she feared being harmed or killed by her ex-partner, as she took away their son despite her ex-partner’s refusal.

Grounds for judicial review

8.  The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

9.  The applicant’s Form 86 and the supporting affirmation dated 23 January 2020 were not made by herself, but by her authorized representative, Mr Lala-An, Jonathan Edorot. The applicant or her authorized representative did not advance any specific ground for her intended judicial review in Form 86 nor in the supporting affirmation. The authorized representative merely stated in the supporting affirmation that the decision of the Board was not satisfactory and this is the reason for the appeal or judicial review.

10.  The supporting affirmation also mentioned that new proofs would be presented during the court proceedings, but the authorized representative elected not to have an oral hearing. Thus, no new proofs were presented to this court. In any event, as discussed below, it is not for this court to receive new evidence or proof from the applicant.

11.  Despite that there were no specific grounds for judicial review being advanced, for the sake of completeness, this court will proceed to examine and scrutinize the Board’s Decision for any error of law, procedural unfairness, and irrationality.

Discussion

12.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s Decision and intervene by way of judicial review only for errors of law, procedural unfairness, or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

13.  In assessing the appeal by the applicant, the Board arranged an oral hearing on 2 December 2019, and the applicant was present at the hearing. Hence, the applicant did have the opportunity to present all her evidence or proof to the Board. The applicant or her authorized representative’s bare allegation that there are new proofs to be presented during the court proceedings cannot amount to a valid ground for judicial review at all.

14.  After due consideration of the law and the evidence of the applicant, the Board found that state protection was available to protect the applicant from her feared ill-treatment. Internal relocation, which was viable, would reduce or negate the feared risks. Hence, the Board concluded that there was not a real risk the applicant would face any of the proscribed forms of harm should she return to the Philippines, and the applicant was not entitled to non-refoulement protection on any of the applicable grounds under the USM.

15.  Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no error of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.

16.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be a reasonably arguable claim which enjoyed realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

17.  For reasons aforesaid, the Leave Application is 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