LORENZO ROSALIE SANTIAGO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1129/2020

[2025] HKCFI 3517

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1129 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;

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

Observations for the Applicant:

1.  By a Form 86 filed on 8 June 2020 (“Form 86”), the Applicant sought leave for judicial review of the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“TCAB”) made on 29 May 2020 (“the TCAB Decision”). The TCAB Decision was made pursuant to a notice of appeal/petition against the Director of Immigration (“DI”)’s tier-one decision dated 25 March 2019. The TCAB and DI have been identified as respectively the putative respondent and putative interested party to this application.

2.  In the oral hearing, the Applicant reiterated the fear/risk she put before the TCAB, viz., that she would be killed/harmed by her husband in the Philippines because she had a son with another man in Hong Kong.  She did not make any submission in relation to the legality, rationality or procedural fairness of the Board Decision, orally or in her home-made court documents.  Instead, she emphasized her wish to stay in Hong Kong to take care of her son, who was born in 2014 and a Hong Kong Permanent Resident (“HKPR”).  However, this leave application for judicial review has been directed against the TCAB Decision but not any other decision such as the refusal of any visa which might enable the Applicant to temporarily stay in Hong Kong to take care of her son.  

3.  I have reviewed the TCAB Decision anxiously and vigorously.  The TCAB had assessed the facts of the Applicant’s claim comprehensively.  It made reference to the circumstances that (a) the Applicant and the Filipino husband had actually no contact since 2000; (b) the husband also had a mistress; (c) threat of violence from the husband was only oral and there was no evidence he had intended to carry out the threat; (d) there was no report to the Police by the Applicant of any alleged threat from the husband.  The TCAB therefore concluded that the Applicant had no real risk of being harmed or ill-treated by her husband if she is refouled.

4.  Moreover, the TCAB studied the country of origin information of the Philippines in detail, and concluded that its government would not refuse to enforce the law and would deal with domestic violence effectively.  Reasonable state protection was considered readily available to the Applicant to protect her from potential harm from the husband.  It held that the Applicant also had an internal relocation alternative.

5.  In the circumstances, the TCAB was plainly entitled to dismiss the appeal/petition.  I am unable to detect any illegality, irrationality or procedural unfairness in the TCAB Decision.  It has been reiterated time and again that the primary responsibility for the factual assessment of whether any risk of ill-treatment exists lies with the TCAB.  In the absence of any errors of law, procedural unfairness or irrationality, the Court would not reopen their findings or make a determination on the case afresh.  The role of the Court in a judicial review is not to provide a further avenue of appeal (see Re Lakhwinder Singh [2018] HKCA 246).  The leave application to apply for judicial review is thus dismissed.

6.  As the TCAB’s mandate was to assess the Applicant’s risk upon her return to the Philippines but not the rights of her HKPR son, it was not necessary for the TCAB to make reference to any rights concerning family union and children under international conventions, Hong Kong’s constitutional order and the Hong Kong Bill of Rights.  In any event, the Applicant should note that the DI is not duty bound to consider those rights in situations similar to that of hers and her son’s by reason of section 11 of the Hong Kong Bill of Rights Ordinance (Cap. 383), see: Comilang, Milagros Tecson & Anor v Director of Immigration (2019) 22 HKCFAR 59, [2019] HKCFA 10.

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