SABULAO GLENDA VILLANUEVA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1463/2020

[2025] HKCFI 3515

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1463 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 as putative respondent; and

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

Observations for the Applicant:

1.  By a Form 86 filed on 13 July 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 24 June 2020 (“the TCAB Decision”).  A copy of the TCAB Decision can be viewed by the following hyperlink[1].

2.  The TCAB Decision was made pursuant to a petition/appeal from a decision of the Director of Immigration (“DI”) dated 13 November 2019.  The Applicant named the specific Member of the TCAB (who also sat as an adjudicator of the Petition Office in handling the Applicant’s claim under the unified screening mechanism) as the putative respondent.  While this naming was not necessarily incorrect, in the interest of consistency with other judicial decisions, I amended the Form 86 on my own motion to name the TCAB as the institutional putative respondent.  The DI has been correctly named by the Applicant as a putative interested party.

3.  The Applicant is a Philippines national.  Her non-refoulement claim was based on an alleged risk of being harmed or killed by the Governor of Cavite, Remulla and/or the people associated with the Governor over a land dispute.

4.  The Applicant set out a number of grounds on which relief is sought in the supporting affirmation of this leave application. In gist, first, she complained about the TCAB’s lack of care to make appropriate arrangements in relation to hearing bundle (“Hearing Bundle Ground”).  Secondly, she complained about non-provision of legal representation or assistance for the filing of her appeal/petition to the TCAB and at the TCAB hearing (“Legal Assistance Ground”).  Thirdly, she alleged that the TCAB had failed to provide language assistance to her (“Language Assistance Ground”).  Fourthly, she said the TCAB had relied on country of origin information (“COI”) which was not officially recognised or simply hearsay, and some of which was fairly outdated (“COI Ground”).

5.  Under the Hearing Bundle Ground, the Applicant stated in the affirmation that the bundle was not provided to her sufficiently early for her to prepare for the TCAB hearing; it was given “just few days before” the TCAB hearing.  The delay was said to be unfair as the majority of the documents in the bundle were written in English and her English skills were limited.  In the oral hearing before this Court, I tried to enquire with the Applicant for more particulars of this ground. However, the Applicant said the TCAB had “treated me well”, and did not apparently understand the gist of this ground, which I extracted from her affirmation.  The Applicant further confirmed, through the assistance of the Court’s interpreter, that she does not maintain this particular challenge.

6.  The Applicant also confirmed, through the assistance of the Court’s interpreter, that she does not maintain the Legal Assistance Ground.

7.  As to the Language Assistance Ground, the Applicant confirmed through the Court’s interpreter that there was a Tagalog interpreter at the TCAB hearing and interpretation service was available at earlier stages of her non-refoulement claim handling process.  The Applicant confirmed she has not complained to the Immigration Department or the TCAB on issues about translation in the past.

8.  I have independently reviewed the TCAB Decision and the first-tier decision made by the DI.  The availability of language assistance was obvious, and there can be no suggestion that the TCAB did not understand the bases of the Applicant’s claim.  Moreover, the Applicant was able to file a notice of appeal/petition written in English to commence the TCAB process.  In my judgment, natural justice, even on the heightened standard for non-refoulement claim handling, does not require the decision-maker to translate every written document in a hearing bundle to a claimant’s primary language in written form.  There is also nothing to substantiate any unfairness in terms of the availability of the TCAB hearing bundle to the Applicant.  By reason of the Applicant’s stance and my independent review, I refuse leave to apply for judicial review on the first three grounds.

9.  As to the COI ground, the Applicant did not provide any particulars what items of COI having been considered was problematic.  In any event, according to the TCAB Decision, the TCAB apparently did not place any significant weight on the COI of the Philippines because it did not factually accept the bases of the Applicant’s non-refoulement claim.  The TCAB did not find the Applicant credible and thus no assertion of genuine and substantial risk was accepted.  In such circumstances, the COI Ground is not going to assist the Applicant.  After all, assessment of evidence, COI included, falls primarily within the decision-making power of the TCAB.  Short of any illegality, irrationality or procedural unfairness in the handling of COI, the Court will not intervene into precisely what items of COI the TCAB/DI had considered and how much weight was given to individual items.

10.  I have reviewed the TCAB Decision vigorously.  In my judgment, the TCAB Decision was supported by sound factual findings, and the TCAB had conducted an anxious scrutiny of the claim.  The TCAB was satisfied that no one would be looking for the Applicant and intending to kill her.  On that basis, the TCAB found the Applicant not being subject to any real risk of ill-treatment, torture, persecution or violation of fundamental rights if she was to return to her home country.  I am unable to detect any error on the TCAB’s part.

11.  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 the TCAB’s 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).

12.  The leave application to apply for judicial review is thus 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